The problem is proving beyond a reasonable doubt that the victim did not give consent. If an alleged rape victim was too drunk to remember giving consent, how do they know they didn't?
The same way you know the difference if someone forced you to vomit or it happened naturally, if you punched the wall yourself of if someone forced your hand into it, if you were too drunk to find the toilet or if someone made you pee elsewhere. Your body feels differently the next day.
I understand that it is a defense attorney's job to force this sort of grayness onto the situation; this law helps keep it clear.
How do you determine when that line begins? If they voluntarily get drunk, it is a tough burden for them to say they didn't intend to have sex when they don't remember consenting. When you get that drunk, you inhibitions go out the window as many of you know. I quit drinking for a long time because of this... If the victim decides afterward that it wasn’t a great idea, then what would have appeared to be consensual sex at the time becomes rape after the fact if she says she didn't affirmatively consent (or remember doing so?).
These are things people say to believe that men who rape are few and far between, to persuade themselves that rape is unusual and atypical. Attorneys use these desires to create doubt.
This is just an anecdotal, but so far, the vast majority of false accusations of rape that I have read about have involved no physical contact between the accuser and the suspect, at all. Women who enthusiastically consent, and then cry rape, are almost entirely the stuff of stories and legends, going back to Genesis.
It would be clear if the victim had passed out, but that would be classified as rape already.
You would think so, but it often does not get treated that way. Again, this law clarifies that.
What about some of the murky gray areas, such as cases where a woman is too drunk to be articulate in her refusals but not so drunk that she passes out? Especially if both parties are drunk?
Can you craft these laws in such a way that there is no gray area?
If you were a member of a jury, and someone says they think they were raped because they were too drunk to remember, how can you convict a defendant who says the other party gave consent?
By voting guilty, of course. If you can come up with a good reason for the woman to lie, that's one thing. Absent that, why would she go through the ordeal of the investigation and trial unless she was certain?
Often at parties both of the people involved do not recall giving consent and regret it in the morning. So what happens in that case? Are they both convicted of rape? If you can be too drunk to consent, can you be too drunk to rape? I know that sounds absurd, but if two parties have sex when they are both piss drunk, how can it be rape (or did they both get raped, and if so, should they both get convicted)?
Are you really so dense that you don't understand the difference between regret and rape? Do you really think women are?