If two drunk people have sex, is it rape? Is it immoral?

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Let's take your second question first: Is it immoral?

First, what counts as immoral will reflect which general theory of morality one has in mind. If you shift away from the having sex part to the getting drunk part, I can imagine that some virtue theorists would think that this alone qualifies as non-virtuous, and thus the decision to have sex being made under non-virtuous conditions. A consequentialist would take into consideration other factors, such as reasonably expected outcomes of drunken behavior (such as lapses in the prudent use of contraception, for example). Given that decisions to have sex can have morally significant consequences, it does seem that the impairments that we all know go with being drunk are morally significant ones. Deontologists stress personal autonomy, and while the decision to get drunk might be made autonomously, it is more difficult to regard the behavior of very drunk people as exhibiting a morally appropriate level of autonomy--including most importantly, the kind of autonomy that goes with the giving of "informed consent." So, to answer your question very generally, I think it is fair to say that at least many cases of two people having sex when they are drunk will qualify as having significantly morally negative features. These problems incline me to think the situation actually does become immoral if one of the parties is so drunk as not to be capable of rational deliberation, if the other (however impaired) can still manage some degree of rational deliberation. Make the situation more uneven in terms of degree of drunkenness, and yes, it looks bad to me!

Is it rape? In the situation I just described, it does begin to look like it belongs at least in that general territory, because it becomes more of a case of taking advantage of another's inability to give informed consent. But if both are out of their wits to an equal degree, it seems more difficult to think of the situation as one of rape. But even so, I would want to know more about how each one came to be drunk, and whether there was coersion or manipulation that led to this condition. If so, it again moves closer to rape.

But to go in the opposite direction for a moment: If a happily and sexually active adult couple decide to celebrate an anniversary of some sort (say) by getting drunk together and having sex, we might still have some reservations about their decision-making, but I think "rape" and "immoral" would not apply. So, I think the specifics of the situation will make a big difference in how we would want to answer your question for different cases.

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