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.