analog

The idea is loosely based on something that once almost happened to a friend of mine back in 2002.

Assumed common knowledge: having sex with a person who is intoxicated is rape. They are impaired, and unable to legally consent to sex. Yes? Good? Ok.

Fred (not his real name) and this chick he just met went downtown one night. Fred was driving, so he didn't have anything to drink. The chick drank, however, and by the time last call came around, she was pretty drunk. Not sloppy, falling over, slurred-speech, nearly-unconscious drunk, but definitely DRUNK. Her car was at his place, so he drove them back to his place. He took her keys and offered her his bed, and went to sleep on the couch.

Here's the deal:

She calls out to him from his room. He goes to her, to see what's up. She doesn't say a word, but immediately starts taking his clothes off. He doesn't help, but he doesn't protest. He doesn't even touch her. She pushes him onto the bed and manually brings him to an erection. She asks if he has a condom. He says that he keeps condoms in his nightstand drawer. She retrieves one, puts it on him, and proceeds to climb on top of him. She's wearing a skirt- she slides her panties to the side and mounts him. He doesn't move, he doesn't touch her. She rides him for a while, seeming to have a great time of it. He doesn't even reach up to touch her, let alone thrust into her. Eventually she's had enough and dismounts, whereupon she finishes him off orally.

So... legally, and philosophically, could it be considered rape?

(pretend she videotaped the whole thing, so there's actual evidence of him not touching her, and her doing all the work. just focus on the idea of "if this is how it actually happened, is it rape?")