I know I am preaching to the choir, but it should be based on what is communicated. If the women is communicating consent, drunk or not, she is consenting. If she is unable to communicate consent, whether passed out or incoherant, then it is rape. That also goes for men. If a man is too drunk to participate and the women does it anyways, it is rape. If he is appearing to be a willing participant, it is not.
The idea that men are responsible for assessing a woman's level of drunkenness is saying women are incapable of doing so herself.
If a person has a DWI, they are legally responsible for any accidents they cause. Why is it a person can be held responsible for choosing to drive while drunk but not capable of being responsible for choosing to have sex when drunk? The law is in direct contradiction of itself.