Most cases of rape absolutely are a case of he said, she said because in most cases they are the only two people present when the encounter occurred.
You can come up with physical evidence showing that intercourse happened and that she had high levels of alcohol in her system. You can come up with witnesses that the man and woman in question attended an event together and she went and crashed at his place. All of that is called circumstantial evidence. So unless you have something like videotape of the assault, it very often comes down to the testimony of two people -- him and her -- and which one you believe the most. Because the definition of rape hinges on the detail of consent.
That is almost always the case. Sex typically occurs privately. There are usually no other witnesses to sexual intercourse aside from the two people who had intercourse. This is generally true whether the incident was consenting or not.
Even in those places, her drunkenness is used as a mitigating factor by the defense — and often also the police and prosecutors.
That is probably at least in part because men and women both routinely drink in order to get past personal sexual hang-ups in a quick and dirty fashion so they can get laid at all, hang-ups that would take years of therapy to really fix. So voluntarily choosing to drink with or in the company of a member of the opposite sex can be reasonably interpreted as intent to try to get yourself laid.
This is part of why people vehemently object when I (a woman myself) suggest things like "In order to protect themselves, women should not drink under x, y and z circumstances."
That said, I also think there's a bright-line distinction between using intoxication to explain an assault, versus using it to excuse one. People tend not to see that line, either, though.
People who grow up with Catholic guilt or who were sexually abused as a child (etc ad nauseum) may, themselves, feel conflicted about having sex at all, even with their spouse. (I speak from firsthand experience as someone who was sexually abused as a child.)
Sexual consent is just not the nice, simple thing that some people want it to be. There are people who can't get laid without getting liquored up. There are people who have rape fantasies because they want sex, but don't want to be "at fault" for doing something that they have internalized is inherently bad and verboten.
This element is mostly not discussed. The subject of rape comes up, and people don't want to talk about how personal baggage intersects with sexual morality and seriously muddies the waters on exactly what constitutes a consenting moral sexual encounter. If you need to have a drink to get laid at all, telling people you need to be sober amounts to telling them you can't get laid until you work out your personal demons. (Which is not what I am saying, but it may be what people "hear" when I say certain things.) This is incredibly problematic.
I'm also not talking about "bright line consent". I'm talking about drawing a flashing-neon line on the near side of using intoxication to excuse shitty behavior. It never excuses anything. E.g., you get behind the wheel, over the limit, that is 100% on you, no matter what.
I advocate that women should not put themselves in certain situations and I get accused of victim blaming for trying to empower women to live safely.
But I did years of therapy. I generally don't drink. Women who do drink and/or have not sorted their childhood baggage get pretty enraged when I suggest not putting themselves in certain situations.
Can you point to a jurisdiction where this rule doesn't require direct evidence? Re-quoting parent's ask here:
>Do we have video of the event? Do we have eye witnesses who saw the sexual encounter? Do we know for sure what happened between two people when most likely no one else was around?
And, anyway, in the jurisdictions I'm talking about, it doesn't matter if you knew or not; if she was that drunk, it's rape. That's what "statutorily" means.
People close to me have been victims of acquaintance rape in their homes. It’s a horrific crime that shakes the victim to her core and leaves her violated in many ways. The process of getting justice is like getting victimized again.
And I'm saying that's all that necessary. With high levels of alcohol I claim that she could say "Yes, please" and it would still be rape: she didn't have the capacity for consent.
Most incidents of first time sex -- ie the first sexual encounter for this specific couple -- involve alcohol.* Are we going to start willy nilly charging both parties with rape for all such incidents?
* at least in the US they seem to.
I asked it to rebut their unstated but obvious (and erroneous) assumption that only men are rapists and only women are victims of sexual assault.
That standard may vary from state to state (but shouldn't.)
http://www.fremstadlaw.com/drunken-sex-rape/
I don't know what the relevant law is in WA.
I don't think you thought that one all the way through. They also wouldn't be allowed to have sex afterwards under any circumstances, which for a lot of women I know would be a problem. As far as I know this is already the law essentially, but not in practice.
Why are rape cases like this hard to prove? She was pass-out drunk, and the accused had sex with her. That's all the prosecutor should have to prove, there should be no she-said, he-said over consent.
Courts regularly rule that people don't have the capacity to sign a contract while drunk, yet somehow they do have the capacity to consent to sex? Come on.
Even if she did say yes, it's still rape in my opinion.
I know that drunken sex is the traditional way to consummate a relationship in modern Western culture, so this would be quite a difficult cultural change.
But IMO such a change would do more to strengthen the drunk college party tradition than it would to weaken it. Girls would be even more likely to party wildly if they weren't scared of being assaulted while doing so...