Yeah, the issue with the targeted person calling it out is that it just allows the attacker to pull the classic DARVO tactic and play the victim. If you fight back, it allows them to paint you in a bad light and use you as an example against everyone like you.
That’s why it’s so important to have allies. It’s the ally’s job to get angry and confrontational when the victimized person can’t. When the victim needs to maintain decorum, the ally should be flipping tables and getting in the victimizer’s face about it. Because Keating is an old white guy; His identity can’t be used to further victimize trans people like McBride’s would have been.
This is a perfect example of how the situation should play out. Bully tries to throw insults. The insulted person remains calm, but their ally gets in the bully’s face and makes a scene. The bully quickly retreats when they realize that they may need to actually back up their words, and the original victim is able to say that they did nothing wrong.
It really depends on how drunk you actually were at the time, and that’s what makes cases like this so difficult. Generally speaking, simply being drunk isn’t enough.
Hell, even being blackout drunk isn’t enough. Because you can be blacked out without being passed out; Blackout drunk simply means your brain isn’t recording things to your memory, so you won’t remember it after you sober up. Contrary to popular belief, alcohol doesn’t make you forget existing memories. It just makes it so you don’t ever commit things to memory in the first place. That’s what happens when you’re blackout drunk.
In order to be incapable of consenting, you need to be so drunk that you can’t comprehend what is happening. Because informed consent requires two things: Information anbout what is happening, and enthusiasm. You can have both, even while blackout drunk. Because you forgetting your enthusiasm the next morning doesn’t automatically make it rape. After all, you were informed and enthusiastic when it was happening, so you consented. If you were capable of understanding what was happening and were enthusiastic, it’s not legally considered rape.
And that’s a surprisingly high threshold to beat. You usually need to prove to the courts that you were basically passed out (and therefore unable to be informed about what was happening) before they’ll consider it rape.
Even if people would colloquially consider drunk sex rape, that’s not typically how the courts view it. And that’s a large part of why so many accused rapists get off without a guilty verdict; The victim basically has to prove that they were missing either information or enthusiasm to overcome the accused’s “they consented to it” defense. And if the victim was blacked out and doesn’t even remember the evening, that becomes extremely difficult to do without outside witnesses corroborating that the victim was passed out and/or combative.
And hell, in cases like the Brock Turner one, even when the victim proves that she was passed out, the rapist can still get away with just a slap on the wrist.