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This question/answer did not quite satisfy my curiosity.

Let's assume this is about heterosexual sex. In a society with law that does not discriminate with respect to gender, if both a woman and man are intoxicated and both apparently give consent to sex, does the law hold either accountable for criminal culpability for sexual assault?

I understand that an intoxicated adult's consent to sex is not considered legally sufficient for responsible consent. If one person was not intoxicated and the other was, consent was given, sex occurred, and then later the previously intoxicated person had regrets, I can sorta see the basis for a criminal prosecution of the non-intoxicated person for manipulating this drunk person into a sex act when they would not otherwise consent.

Also, in most criminal acts, for the perpetrator to be drunk when they commit a crime might mitigate culpability, but intoxication of the perp does not eliminate culpability. I imagine that a drunk person who robs a bank or mugs another person or assaults another person (whether it's sexual assault or not) is still held culpable for the crime even though they were drunk.

So the adult guy is drunk or stoned, the adult lady is also drunk or stoned. Both say "yes" to each other and do the horizontal bop. No force, no injury, no torn clothes.

Then 12 hours later one of them decides they were raped. Insists they were raped. Says that they were not in sufficient condition to give consent. Is the other legally liable? How is it decided? What conditions must be met to hold one as the perpetrator and the other as the victim? By being first to cry "rape!", does that make the other the perpetrator? By being female, does that make the other the perpetrator?

marked as duplicate by Nij, Dale M, BlueDogRanch, David Siegel, jimsug Feb 10 at 10:11

This question has been asked before and already has an answer. If those answers do not fully address your question, please ask a new question.

  • i've read that question and answer and referred to such in my question. it still did not get to the heart of my question. – robert bristow-johnson Feb 9 at 4:11
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    Dissatisfaction with existing answers is not an appropriate reason for asking the same question again. – Nij Feb 9 at 4:11
  • it's not the same. – robert bristow-johnson Feb 9 at 4:11
  • Then there's this as well. There are multiple answers to this question. Asking again isn't going to change what they are. – Nij Feb 9 at 4:26
  • Yes, @Nij, i agree that this newly referred question/answer is about the same topic. Yet there is no response about U.S. law. – robert bristow-johnson Feb 9 at 4:33
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Is the other legally liable?

Yes, if found guilty by a court of law.

How is it decided?

By triers of fact and law, generally in a court.

What conditions must be met to hold one as the perpetrator and the other as the victim? By being first to cry "rape!", does that make the other the perpetrator? By being female, does that make the other the perpetrator?

Generally you first need to prove that a crime occurred in order for there to be, legally, a victim or a perpetrator. The victim is therefore the person who the perpetrator is found guilty of committing a crime against, or who suffers loss or harm, as a result of the perpetrator's crime. The perpetrator is the person who a legal instrument finds guilty, or who pleads guilty or confesses to a crime.


The question here is, in fact, answered by the first-mentioned link. If this is a site about laws and the law, then I think the questions raised in this question are perhaps more political and leading than we can answer. Historically, rape has only been defined in such a way that women could not be found guilty of the crime - penetrative sex could form the physical elements for rape only if carried out by a man against a woman.

So perhaps in the past, being female makes the other the perpetrator, because the law did not contemplate that a woman might be able to have sex with a man against his will.

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