[OptimalTates]

According to his own killers, Emmet Till was just as defiant when the racists hicks executed him for allegedly flirting with a white girl. Beaten, naked, and a gun to his head:

Milam: "You still as good as I am?"

Till: "Yeah."

Milam: "You still 'had' white women?"

Till: "Yeah."

Given that it was a witch hunt in itself and Till was an adolescent standing up to racists, I'd say his "yeah" has more weight than Giles' "more weight".

Originally Posted by afc wimbledon

Let's go over this slowly shall we, I am not saying that any and every time a man has sex with a drunk girl he is raping her, what I am saying is that when he has sex with a drunk girl she has not consented legally, that the law by now is clear, you cannot assume consent when a girl is wasted or drunk

The law is absolutely not clear on this. At least not in Canada. The threshold is unconscious before it becomes abundantly clear. Otherwise the crown is required to prove beyond a reasonable doubt that the person was so incapacitated that they could not consent.

Accused’s belief as to consent

(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief.

Where belief in consent not a defence

273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where

(a) the accused’s belief arose from

(i) the accused’s self-induced intoxication,

(ii) the accused’s recklessness or wilful blindness, or

(iii) any circumstance referred to in subsection 265(3) or 273.1(2) or (3) in which no consent is obtained;

(b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting; or

(c) there is no evidence that the complainant’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct.

Most recently we had a case with a couple camping with a drunk 16 year old who was originally found guilty of sexual assault. In an appeal it was overruled because the trial judge didn't explain sufficiently enough how he decided she was incapacitated. And then overruled again by the Supreme Court (with a dissent).

Originally Posted by Majority

As capacity is a precondition to subjective consent, the requirements for capacity are tied to the requirements for subjective consent. Capacity to consent requires that the complainant have an operating mind capable of understanding the physical act, its sexual nature, and the specific identity of their partner, and that they have a choice of whether or not to engage in the sexual activity in question.

Originally Posted by Brown and Rowe (agreeing with majority's outcome but disagree for reason)

There is agreement with the majority that capacity to consent should be understood as a precondition to consent under s. 273.1 of the Criminal Code, and that it is possible to find that a complainant lacked capacity to consent while being capable of withholding consent. There is also agreement with much of the majority’s recounting of the law regarding appellate review for sufficiency of reasons, but disagreement as to the sufficiency of the trial judge’s reasons in this case with respect to the complainant’s capacity to consent. However, the evidence that the complainant did not consent is overwhelming and the curative proviso should apply.

...
In this case, the trial judge’s reasons make clear that he convicted on the basis of incapacity alone, but they do not disclose what standard he applied in deciding that the complainant was incapable of consenting. While a finding of incapacity was available on the evidence, the evidence could also support the conclusion that the complainant had the cognitive capacity to consent throughout the interaction, and it was crucial that the trial judge satisfy himself that the complainant was intoxicated to the point that she could not provide consent in order to convict F and B on that basis. However, in light of the overwhelming evidence that the complainant did not consent, no other verdict was possible.

Two Supreme Court Judges looked at the evidence on record and the capacity of the victim could go either way. To me that shows there's no hard rule and it is not clear. They instead found that she had not actually consented regardless of capacity (she testified she said "no"). (Another judge dissented based on legal stuff).

In another decision released just a week before that one regarding a 15 year old sleeping with a 14 year old there was a dissent:

A reconstruction of the timeline indicates that the intercourse may have occurred at any time during a window of roughly two hours. As a result, the evidence did not permit the time of the intercourse to be determined beyond a reasonable doubt. The trial judge could not reasonably conclude that D’s being incapable of consenting at the time of the intercourse was the only reasonable finding available on the evidence. Without the finding of incapacity, there was no case against P, because neither D nor any other witness had testified that D had not consented as a matter of fact. Consequently, the evidence is not capable of supporting the verdict that P is guilty of sexual assault, and an acquittal should be entered in its place.

I think one of the issues may be with the definition of "drunk". With your examples of waking up next to someone you don't remember, yeah that's beyond capacity. But what about 0.08, the legal limit to drive? At that level I certainly don't have the reflexes to drive, clear changes in judgement (it's the only time karaoke feels like a smart idea) but I certainly have the capacity to consent as defined by the Supreme Court despite being what I think many would classify as "drunk".

And then we get into weirder stuff when people are drugged unknowingly. Despite having the same capacity, the courts have become more lenient on finding the inability to consent due to lack of capacity when a person was drugged against their will. Which I obviously don't have an issue with morally, but legally if I were to knowingly have 6 drinks and then slept with someone, I'm able to consent. If I were to have 6 spiked drinks and then slept with the person who spiked it, despite having the same capacity, the same judge and court may find that I no longer am. It's a weird a hiccup.