criminal-law sexual-assault equal-protection
sexual assault, intoxication, consent
<p><a href="https://law.stackexchange.com/questions/17646/if-two-individuals-who-are-too-drunk-to-give-consent-have-sex-are-both-guilty-of">This question/answer did not quite satisfy my curiosity</a>.</p>

<p>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?</p>

<p>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.</p>

<p>Also, in most criminal acts, for the perpetrator to be drunk when they commit a crime <em>might</em> <strong>mitigate</strong> culpability, but intoxication of the perp does not <strong>eliminate</strong> 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.</p>

<p>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.</p>

<p>Then 12 hours later one of them decides they were raped.  <strong>Insists</strong> 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 <em>"rape!"</em>, does that make the other the perpetrator?  By being female, does that make the other the perpetrator?</p>

<blockquote>
  <p>Is the other legally liable? </p>
</blockquote>

<p>Yes, if found guilty by a court of law.</p>

<blockquote>
  <p>How is it decided? </p>
</blockquote>

<p>By triers of fact and law, generally in a court.</p>

<blockquote>
  <p>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?</p>
</blockquote>

<p>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.</p>

<hr>

<p>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 <em>only</em> 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. </p>

<p>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.</p>
