Clearly, the statute treats the intoxication of the complainant and the accused quite differently. If the accused’s belief in the complainant’s consent was due to his or her intoxication, that’s tough. By contrast, the apparent affirmative consent of the complainant does not count if the accused reasonably should have known the complainant was intoxicated and unable to consent.
So imagine two people have a sexual encounter. They are both equally intoxicated. If the complainant was intoxicated, he or she is not held responsible for it (in the sense that she can still claim to have been sexually assaulted). But if the accused was intoxicated, he or she is held responsible for not securing the requisite affirmative consent. To put it crudely, if you are the complainant, you can get drunk and not lose your rights. In fact, your partner must protect you. But if you are the accused, that you got drunk is no excuse.
- See more at:
Intoxication and Mutual Sexual Assault under the Yes Means Yes Statute - Online Library of Law & Liberty