When the victim is passed out there is little doubt but what about when both involved are drinking.  Either one could black out not pass out.  The partner is not able to determine that and after he or she screams rape.  There are people in prison for this exact occurence.  I do not know what the answer is but at this point intoxication is an excuse only given to females not males.  For males it does not matter if they are intoxicated and taken advantage of today they are guilty.