If two individuals who are too drunk to give consent have sex are both guilty of rape?

Question

Hypothetically let's say that two individuals are heavily drunk, to the point that their ability to give consent is questionable. They have sex, both of them either don't remember the details of the night (black out) or both remember the situation as the other initiating the sexual encounter; in either case there is no clear way of determining who initiated the encounter.

If both were to make claims of rape could they both potentially be arrested for the act?

If one were to make a claim of rape could the other counter-sue for rape, that is to say if one doesn't claim rape until after the other makes an allegation how much of an affect would the delay in the claim make in the odds of either one being found guilty?

For this question lets assume a state with a 'proactive' legislation which does not define rape entirely as penetration, ie one where it is possible for a women to be found guilty of raping a man.

Answer 1

That's a tricky question. What does "guilty" mean legally? The police will investigate if they think there was a crime. A prosecutor will prosecute if they think there was a crime, and enough evidence for a conviction. You are "guilty" in the eyes of the law if the prosecutor can convince a judge and/or jury that the person has committed a crime.

Having sex is generally something that two people do. At least one of them has to do it actively, or nothing happens. The law requires that both parties should consent to having sex, and being mentally capable of consenting is a requirement.

To convict of rape, the prosecutor would have to prove beyond reasonable doubt that A actively had sex with B (hard to prove) when B didn't consent (which we know because B was too drunk to consent), or that B actively had sex with A (hard to prove) when A didn't consent (which we know because A was too drunk to consent), or both. That would be very, very hard to prove.

Answer 2

As nsbd points out, rape is not a civil matter: you can neither countersue nor choose whether charges are brought.

It is the state (in the person of the District/State Attorney in the USA) who decides whether to charge either participant. It is certainly possible for the police to arrest both of them (and hold them while investigating), but as commented no rational prosecutor will charge both, since claiming one is guilty involves painting the other as a victim.

Realistically, it is unlikely that either will in fact be charged, even if they both wish to make a complaint. Conviction for any crime requires proof of guilt: if the evidence is "I think he/she did" versus "I think I did not" there is no way a jury can be convinced beyond any reasonable doubt.