Assume the opposite, and decide if it's true.

until a woman loses consciousness, she can be said to be “incapable of consent,”

None of us, the judge included, know what went on in that cab.  The case has to be judged by the facts -- not some arbitrary rule that says drunk people cannot consent to sex.  Geeeeesus, after all those bottles of Chardonnay, which one of us is guilty of sexual assault -- my girlfriend or me?