And she is not a jerk? She was at least as bad as he was. Two kids fumbling around is what it was, but he is the one taking the risk of a sexual assault charge because if the anti male nature of our sexual assault laws.
No, this wasn't two kids fumbling around. It was one person making sexual contact with another person who was completely unresponsive, had her eyes closed, and seemed unaware of what was being done to her.
He might risk a sexual assault charge under such conditions, not because the laws are "anti-male", because they're not, but because he had no indication his contacts were wanted, or that she was in any condition to either consent or indicate non-consent because he knew she had been drinking.
In the state you live in, which has an affirmative consent standard--a "Yes" is required, or some indication that she is a freely willing participant--he would have crossed that line in terms of sexual assault. She was totally passive and unresponsive--she gave no indication she was fully conscious or awake, let alone "freely willing". How could you justify his behavior as not being a rape under the laws of your state?
In the state I live in, which has a "No means no" standard, the burden of responsibility for setting boundaries is on the person receiving the sexual contacts or attempts at genital penetration, who is most often the female. She must either say or indicate "No" or "Stop" to define those boundaries--the point at which the contact is unwanted, and the point at which consent is withdrawn. However, if she is mentally incapacitated or physically helpless--as she might be if severely intoxicated--she might not have the capacity to resist or to legally consent, and he is considered responsible for being aware of her condition, and not initiating sexual contact under those circumstances.
As I said in my previous post, I don't think this would be considered a rape in my state, because this particular woman was neither mentally incapacitated nor physically helpless--she tells us she was slightly tipsy, but mostly sleepy. She was aware of what he was doing, she wasn't unable to move or speak, she made a conscious decision to let him continue "to see how it played out" and when she finally said "stop", which was after the first vaginal penetration, he did stop. She could have said "No" earlier, but didn't, so, in terms of legality, she blurred the consent lines for him.
But, in this particular situation, we are discussing a boyfriend and girlfriend with an ongoing sexual relationship, and presumably, some positive feelings for each other, and the female wasn't incapacitated by alcohol, regardless of how she appeared, or tried to appear. If it had involved this male, or any male, acting this way toward another woman, who was genuinely incapacitated, there is no question it could be considered rape.
I fail to understand why cupcupcake is even wondering why she was raped, since she knows she had control in that situation. She wasn't being forced or threatened, or even really pressured, she was aware of the situation, and she knows she could have told him to stop earlier--when he first came into the room and got on her bed with her, and tried to talk with her and then began touching her, she could have told him she wanted him to leave because she wanted to sleep. Nor should she feel humiliated that she didn't do that, nor think about her boyfriend's behavior in terms of "rape", because, in this particular scenario, that legal label really doesn't fit, and I don't get the point of her even thinking in those terms. I think she's mainly pissed at her boyfriend for not being honest with her about what transpired when he thought she was knocked out.
I also fail to understand why anyone thinks this particular situation should be reported to the police as a rape--even if they think it meets the legal definition. The female involved is apparently not concerned about doing that. As much as I want to see more rapes reported, I wouldn't advise that in this particular situation, because it involved a degree of deception, by cupcupcake, about how "knocked out" she really was.
In ongoing sexual relationships, whether boyfriend/girlfriend or a marriage, one of the partners may try to initiate sexual contact or engage in sex, when the other isn't fully awake, or when they've had a little too much to drink, and they are passive and unresponsive, but unless the partner protests, they don't consider what they're doing a violation or an assault. And one instance of that might be reason to talk it about that the next day, to get future consent boundaries straight, but I think, if that's all that happened once, in a basically good, mutually respectful relationship, it's not sufficient reason to have a boyfriend or husband reported as a rapist and hauled off in handcuffs.
Situations, like the one in the OP, indicate why a "Yes means yes" standard of consent is preferable, particularly for younger adults. If a "Yes" is required before
any and all sexual contacts, it would have been clear to the boyfriend that he didn't have it, because of her unresponsiveness and passivity, and he should have immediately left her alone. And she wouldn't be wondering whether she was raped, because the whole issue of what constitutes "consent' would be clearer.