re: 17 year old girl raped at Keith Urban concert

in reality, it's irrelevant. if a person is pushing for the charge, he/she is going to testify that he/she was incapacitated regardless of whether it is true or not. otherwise, if the only basis for the rape is the party's mental state (as in, there was no clear "no" via communication or physical movement), then the case goes *poof*

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Does that hold up in court? I don't disagree with it, but I see it thrown out a lot.

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In criminal cases the prosecutor has to prove the case beyond a reasonable doubt. If the basis of the prosecution is incapacitation of the victim, the prosecution has to prove that element beyond a reasonable doubt. It just depends on the facts of each case and the jurisdiction on whether the prosecution can do that, but cases where the victim is voluntarily intoxicated are typically very difficult to prosecute according to what I have been told.