There is no doubt that there is something of a double standard there, for example, I know of cases where it was a same sex couple where the university refused to prosecute a case like this (two women), arguing basically that because it was two women, it couldn’t be rape. I think that some of the rules do trouble me, and here is why:
1)If a boy is drunk and the girl has sex with him, there is an implicit notion in many of the rules that assumes the boy was ‘active’, and if so, must have been able to control himself, so a girl couldn’t be guilty of non consensual sex. Not to mention, of course, the idea that 'what kind of boy/man would object to having sex?", which is despicable in of itself. Put it this way, would they feel the same way if the boy was drunk, and the girl did something like penetrate him, or whip him or something?
2)If a boy and girl are both drunk out of their minds, they will charge the boy with non consensual sex, with the assumption that simply because he is a boy and the partner is a girl, he must be guilty of rape…why? In that case, then charge them both with non consensual sex, since a)it is unknown who is guilty, the girl could have initiated sex, the boy could have, and they both are guilty of having sex with someone blacked out.
For the record, the defense that someone was drunk should never be used to keep them from facing consequences. If a girl was too drunk to consent and her partner was as well, they both are guilty of having sex with someone who couldn’t consent, and should be charged, the idea that a woman cannot rape or be guilty of non consensual sex is the ultimate form of sexism, and sadly, I have heard women argue that very thing, that in those cases it is always the boy at fault, since of course they are predatory monsters.
And what if it is two girls, both drunk out of their minds, who have sex? Does this mean one of them must be the agressor and the other one victim? (one of the problem with these rules is from what I have seen, with two women they would not prosecute and assume it was one of those things). Likewise, if it is two boys having sex, they are both drunk, is only one guilty, or would the likely refuse to prosecute?
That said, though, that is one case, where they are both drunk beyond the point of consenting. However, there is a difference between where there had been drinking but the boy was not bombed out of his head, and the girl was (and the same thing should apply if the girl was able to consent, but the boy couldn’t), that imbalance should be sexual assault, it is not equal and that is the point, if one person is assumed to have control of themselves (ie cognizant, aware, able to consent) and the other one cannot, that is sexual assault (and as I think I wrote in another post, that one depends on the state, some would view a non consensual sex act with drinking like this as being different than rape, others may not, all depends on the state).
There will always be gray areas with these cases, and if the law is to be followed properly, if the gray is too large to tell what happens, then the ruling should be no ruling. If a boy and girl (or girl on girl, boy on boy) having sex is a case where they are both drunk out of their minds, then I personally think it should be ruled inconclusive, since neither party could consent, or both should be given some penalty, perhaps less than sexual assault (whatever happened to a penalty for being disorderly on campus or some variation thereof, perhaps with stiffer penalties).
The sad truth is, though, that a lot of these cases aren’t so gray, the ones where the boy is totally drunk out of his mind and blacked out are not that common from what I have seen, while usually the boy was drinking, it usually is a case where the girl, probably because they were drinking one for one, was bombed while the boy, who likely has a higher tolerance for alcohol because of body size, may be drunk but not blacked out. Worse, a lot of boys still have the idea, usually caught from dear old dad and other men around him, that consent is assumed, that of course she wants it (and before someone claims I am anti male, I am not, being a guy, I have been around these attitudes all my life).
So what did I tell my son? I told him to use his head, that if either he or his partner (in his case, a girl) had been drinking or seemed impaired, to assume it wasn’t okay, the same way I told him that if he felt uncomfortable, to stop, or if he felt in any way that his partner might not be happy, to stop and talk to her and make sure she is okay, and drummed into him that sex is a powerful thing, and that yes, as a boy, for better or worse he will often be held to a higher standard, but more importantly, to cherish that sex freely given is a heck of a lot better than if your partner is wasted. I am fortunate with him, while he can do stupid things, he has natural empathy and the last thing he ever wants to do is hurt someone, and he also is not one to drink like that either, in part because for him I suspect it isn’t a big deal. It is like anything else in life, I think a lot of it is what the person picks up from people around him, he has been around a very different group of kids growing up, plus my wife and I aren’t exactly of the ‘boys will be boys’ school of things, so he never as far as I can tell internalized the idea that he was owed sex, or that if you can grab it, no matter what, go for it.
Could he do something stupid even with all that? Yep, he is not perfect, he makes mistakes, and all I can hope is that the lessons I tried to teach and his own experience are strong enough to override any idea of doing something stupid…and it doesn’t always work, fortunately the kind of stupid things he has done are not of this type of thing:)