I usually find Bazelon's contributions very informative and well done. Unfortunately, for this very difficult topic, it did not go as well as it should have. First, Kobe Bryant was not found "not guilty." His attorneys used the age old strategy of attacking the victim and got the charges withdrawn. We will never know the truth as such about that incident in which, unlike the Hofstra case and the Duke lacrosse case, there was physical evidence for non-consensual, violent rape (a sexual assault and battery in civil law terms) as well as an out of court settlement that exchanged silence for money. Bryant now has endorsement deals and a flowering, celebrated career. The second problem was that Bazelon's description of the problem feminists like myself (though I am male) are having with "date rape" is the age old regret problem. Many feminists have additional arguments that Bazelon neglected such as: Roiphe's anti-feminism is a symptom of a still patriarchal society imprinting women with self-negating, destructive behaviors and attitudes. Feminists as a group have never argued that we need to stop making excuses for "loose" women. Feminists reject the concept of "loose" in its entirety. As for the legal issues, no woman consents when she is drunk. Alcohol removes the ability to make decisions under the law. Non-compos mentis means she cannot consent. Therefore, the law should declare it rape. Leave it to the sentencing system to take account of the level of brutality, coercion, malice aforethought involved.

"Alcohol removes the ability to make decisions under the law."

This is not true, particularly in criminal law. If alcohol "removes the ability to make decisions" then one might think that people who committ crimes under the influence of alcohol have not made a 'decision' to committ a crime, and thus lack 'intent' or culpability for their drunken actions. It generally doesn't work this way -- try claiming that you were so drunk that your "decision" to drive shouldn't be held against you.This raises an issue others have pointed out -- what if a drunk man has sex with a sober woman? Has she committed 'de facto' rape? This raises a plethora of legal questions about general and specific intent, etc. etc.

Another big problem is that people often assume that terms like "drunk" are easily translatable into legal use. Generally speaking the word "drunk" never shows up in the penal code. For purposes of driving a motor vehicle there is often a "presumption of intoxication" at a certain blood alcohol level. But other than that "under the influence" is a very fuzzy concept, one that jurors often have to struggle with. Perhaps we should have a "Sexing under the influence" law, where it is illegal to have sex when one is "impaired to the slightest degree in their ability to safely have control sex." In addition, there far less likely to be any 'scientific' evidence of intoxication in a rape case (like, say, a breathalyzer score taken with two hours of the event).

How about the drunk male(s)?

Are they completely responsible for their actions as well?

Are men supposed to administer an alcohol test to females they are about to have sex with?

"If she's .08, don't fornicate!"

What do you mean by drunk? If you mean "unconscious", then yes, a drunk unconscious person can not consent to have sex. Being intoxicated does not absolve you of responsibility for your actions, be they criminal or sexual.

A drunk woman who takes a life behind the wheel is rightly held responsible for her actions. A drunk woman who steals a wallet, or robs a bank, as well. Why should a drunk woman who engages in sex be any different? Should our legal system treat drunk women differently from drunk men?