On rape and being drunk

So I watched “The Assault” (on peacock) last night … about a cheerleader who gets raped by the team … sigh … but there was something that really made me stop and think.  (Always a good thing.)

They claimed she consented, she was drunk/unconscious so even if she had consented, it would be considered invalid because when drunk, you’re incapable of consent.  All good.  (Well, sort of.  I think it’s more complicated than that: as I argued in my Master’s thesis 30 years ago, I think consent is best conceptualized as continuum …) 

But then one of the boys said “I was drunk too!  Doesn’t that matter?”  Fair enough.  If we absolve the girl of responsibility for her behavior because she was drunk, shouldn’t we also absolve the boy of responsibility for his behavior because he was drunk?

But then I thought, hang on, if a man sets my house on fire when he’s drunk, he should still be held responsible.  If a man beats me up and breaks my jaw when he’s drunk, he should still be responsible.  If that’s what you do when you get drunk, don’t get drunk.

But no, wait, there’s an important difference: sex, unlike a house on fire and a broken jaw, is something one does, reasonably, consent to from time to time.

So, okay, solution: he should have to prove she consented.  He’s the agent, the one who did something, so the onus on him is to prove it was acceptable.  This should apply in non-drunk cases as well, I might add.  The default should be ‘non-consent’–so he has to prove she said yes rather than, as is the case, she has to prove she said no. 

(And it’s a reasonable default: with any given man, most women would not consent to sex.  That is to say, most women want to have sex with far less than over 50% of men.  Measured another way, that would include even partners, at any given moment, most women would not consent to sex.  That is to say, most of the time, a woman isn’t interested in having sex.  We might want to adjust the average for women at a certain age, as sexual desire does change over one’s life time, but still.  A reasonable default, I think.)

But, what if the woman was the agent?  What if she climbed on top, engulfed, then rode him?  And both were drunk.  Can she still claim rape?

So, back to the beginning, in addition to being drunk, does she need proof that she was not the agent?