...and then we get into a whole different area of capacity and whether one was able to give legal consent.

Certain capacity issues are covered in law I think. Like mental health issues and certain disabilities. I am not sure where being intoxicated falls on the scale of legal definition of capacity.

For instance, had one had an anaesthetic in the last 24 hours one could certainly be said to have some diminished capacity to make decisions (I think some talk of not signing legal documents if you have had an anaesthetic for at least two weeks has been mentioned but I cannoit find a good reference to it, sorry). Drink and many drugs undoubtedly affect capacity to make good, informed decisions.

For me then the onus shifts to the person who is trying to get you to agree to do something you may not ordinarily do if you were sober. Quite how that stands in law I am not sure. But, then, what happens if both party's are drunk and 'incapacitated'? All sorts of legal arguments would ensue, and have surely done so when some rapes have come out and been reported. Capacity to make an informed choice should be in there somewhere and anyone taking advantage of that incapacity is, in the least, in the wrong.

Capacity is a whole minefield in itself and not just in rape cases.

mp