I can see that being true in a circumstance where you happen to meet someone who's too drunk to consent (like in the crowd at the Indy 500), you're not, and you have intercourse with her.
But Ben's case doesn't seem to be that way. They had (per the DA) verbal foreplay (mutual teasing, sexually explicit mutual conversation), she conducted herself in a way that suggested she was ready/wanted to have sex ("DTF" lapel pin), she initiated what could be considered sexual contact with him (pinching him - certainly guys have gotten slammed legally with "sexual assault/harassment" charges for doing something similar). Can't all this be put together legally be construed as consent of some sort - maybe implied?
And if after that she got REALLY REALLY drunk, is that implied consent still in effect, or is there some magic BAC level where a withdrawal of sexual consent automatically occurs?
Just to be clear, I'm not trying to justify what he did morally. I'm just addressing the legal issues here, because some are still bringing them up and saying "RAPE" - despite the DA's best efforts being unsuccesful to even charge him for this, much less prove it.
Why would someone do that?