The worst rape straw man argument

I was just reading over another generic Huffington Post link defending the claim that drunk sex is a form of rape, and I saw the same tired dodge that comes up whenever this claim is criticized.

Author James R. Marsh, who claims to be a lawyer, was responding to a piece defense attorney Matthew Kaiser wrote in TIME. Kaiser did a pretty good job of summing up why two drunk college students agreeing to have sex with one another should not be assumed to be a case where the male student raped the female student.

I say Marsh claims to be a lawyer because he made a strange criticism of Kaiser that the man provides legal counsel to people accused of crimes. Marsh does not seem to understand the notion of innocence until proven guilty or that the right to an attorney is extended to all people in America accused of crimes, even terrible crimes.

Kaiser, it should be noted, has built part of his career around profiting off of sexual predators. He solicits putative pedophiles and child molesters on his law firm's website... Kaiser sells his ability to protect the "good name" of people who watch, distribute, and produce child pornography. There is no evidence that his college client is different. Indeed, Kaiser never says his client didn't have sex with the victim. He instead makes the baffling claim that the rape (which he acknowledges happened) somehow doesn't count as rape.

I can understand a member of the general public being this clueless on legal philosophy, but not someone who introduces them self as an "internationally recognized lawyer."

But I do take Marsh's word for it that he was "baffled" by what Kaiser wrote. I think he is baffled a lot because he trots out the same tired cliche response that fails to address the criticism of the "consent" standard to separate sex from rape.

Specifically, Kaiser (and me, and many other people) are saying that it is not rape when two people choose to get intoxicated and then choose to have sex. Kaiser even took the time to clarify:

Of course, if someone has sex with an unconscious woman, that’s sexual assault. And if a woman is drunk and another person forces sex on her because she’s vulnerable because she’s drunk, that’s also rape.

But Marsh, like nearly every other "consent" defender I have witnessed, shot back with an oblivious statement. Early in the statement he acknowledged that Kaiser isn't saying that drunk women are free to be raped, but then later he went on to say just that:

Drinking does not mean someone is "asking" to be raped. Drinking does not make it okay to attack another person (something most men are perfectly capable of not doing). 

This is such a tired straw man argument. No one, absolutely no one, is saying that drunk or unconscious people are free to be attacked and raped. He is making a big leap of faith by calling wanted sexual activity enjoyed by a wide-awake person "rape" and describing it as an attack.

I see this exact same argument trotted out again and again when someone is asked to defend their position on consent, and it shows how weak their positions really is when they can't address the real arguments, like the idea that both partners would be considered both rapists and victims by their definition.