There are two questions here: what is or ought to be legal and what is or is not moral. I think that drunken sex should be classified as rape only if the woman is unconscious, and thus literally cannot give consent. I might go along with Ruben Salsa’s criterion of being unable to stand up, particularly if no verbal consent is given. But just because something is legal, doesn’t mean it’s OK to do it. That’s the point of separating church from state. Our consciences have to be our guide a great deal of the time, because you just can’t write laws that can handle all the nuances of what’s right and wrong.

I’ve been monogamous for over three decades, but when this was an issue for me, I would always stop unless it was clear to me that the lady was enjoying it. There was a “deer-in-the-headlights” look that said “no” more eloquently than any words could, which is a good thing because asking for verbal consent would’ve been considered really bad form back then.

If this were an issue for me now, I would ask myself “Are we going to regret this tomorrow?” which would have probably caused me to avoid consensual encounters I later regretted. But none of these nuances can be encoded in legal form to insure that no one will ever have regrettable sex. Verbal laws are just not flexible enough to accommodate all ethical decisions. Being a decent person is largely a matter of intuitions and compassion, not just following rules.