What if we BOTH get so hammered neither of us know what we're doing? If we enter into a drinking competition at the bar and hammer down the sambuca shots until we drag each other into a taxi and suck each others faces off all the way home before having drunken sex with each other - which neither of us would have done sober - then I think we're both equally as culpable, no rape taken place. Consent isn't something you can just retract the next day.
I think the issue is more who is responsible for the intoxication, if the individual is coerced or tricked into being excessively intoxicated then consent has been illegitimately obtained, or more accurately the individual is too intoxicated to consent OR dissent. The fact there is an absence of consent and the individual lacks capacity to consent constitutes rape.
If I got drugged that's different, though if I was unconscious due to having imbibed too much alcohol and rohypenol I doubt I'd be getting an erection in a hurry, though I've never tried rophy so I can't comment accurately.
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