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There is not a single jurisdiction in America that would not consider both men criminals if such a thing happened. On the issue of consent, people will be considered most unlikely to have willingly agreed to sex if they were unconscious, drugged, abducted, subject to threats or fear of serious harm, or incapable of giving consent because of learning disability or mental disorder. Drunkeness does not excuse your criminal activity. What constitutes "too drunk"? Why do you care what I think anyway? Why do you have such a problem with the idea of people being too drunk to consent?
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Look all these knee jerk reactions to this are silly. I'm pretty sure that's the standard throughout the U. If somebody is drunk to the point of unconsciousness , then they can't consent anyway under current laws because they can't move or talk. Basically, men could say 'I thought she consented' and the question then hinged on - was he telling the truth? The actual numbers don't matter. Please note that the goal is not to 'ensure justice is done,' or 'make sure that people who are committing rape can't get away with it', but to simply increase conviction rates. If you meet a girl in a bar and have a couple of drinks and she consents and later regrets it you will not be prosecuted for rape.
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