Since the crime of rape is contingent on intent, the question of alcohols influence on intent must be brought up. In order to fully understand how alcohol affects ones ability to give and understand consent, we must analyze the situations during which alcohol plays a role in consent. There are three major instances to go over where alcohol affects someone's ability to give or understand consent:

Scenario 1: Victim is drunk, perpetrator is sober.
This is a very common scenario, with variables of its own to be considered. These are the level of drunkenness of the victim, the perpetrators knowledge of this drunkenness, and the victims general actions.
How drunk the victim is is important in understanding their ability to give consent. Clearly if the victim is passed out they are unable to give consent. It's also clear that if the victim is sober enough to pass a police sobriety test, they are able to give consent. These two states exist as the opposite ends of a sliding scale where the closer they move to the middle the less clear ones ability to give consent gets. As of now there is no standard line between "able to give consent" and "unable to give consent". The CEO of the National Center for Higher Education Risk Management (NCHERM), Brett Sokolow, who is also the country's leading consultant of campus sexual assault draws the line at incapacitation. The line between drunk and incapacitated is still blurry though, since the exact moment when someone becomes incapacitated is impossible to calculate. This means that the line between able to give consent and unable to give consent is blurry as well, leaving a gray area that cannot be compressed.
consent scale.jpg

If someone is incapacitated, regardless of what they may say, they are unable to give consent.

Scenario 2: Perpetrator is drunk, victim is sober.

The main dispute when it comes to this scenario is not the validity of the victims consent, but the culpability of the perpetrator for their actions. It is clear that an act of rape is an act of rape no matter the mental state of the perpetrator, but it is not clear whether it is a crime of rape when the perpetrator is inebriated. The line between act and crime is drawn at intent, so we must take a look at alcohols affect on a persons intent. Here it is easy to refer back to the chart above. Since someone's ability to give consent is directly tied to their ability make make decisions, someone's ability to understand and comply with a lack of consent should be around the same. That means that if the perpetrator is incapacitated, they have committed an act of rape and not a crime of rape. If the perpetrator was just drunk, they have committed a crime of rape.

Scenario 3: Both Parties are drunk.

This is often the most difficult situation to analyze, since both parties decision-making skills are impaired. In this case the validity of the consent and the culpability of the perpetrator both depend on their general levels of drunkenness. This leads to a string of sub-scenarios that must be plugged into the guidelines from the chart and from the previous scenario:
1. If the victim is incapacitated and perpetrator is drunk then the victim is unable to give consent and the perpetrator is liable for their actions.
2. If the victim is drunk and the perpetrator is incapacitated then the victim is able to give consent and the perpetrator is not liable for their actions.
3. If both victim and perpetrator are drunk then the victim is able to give consent and the perpetrator is liable for their actions.
4. If both victim and perpetrator are incapacitated then the victim is unable to give consent and the perpetrator is not liable for their actions.