As is now in the press the Right some time ago tried to insert "forcible rape" as a precondition to access for funded abortion services and it is being use to tie Ryan to Akin and so on.
(Obviously one is left with 'what is unforced rape'.)
There is a belief among many regarding the notion of date rape being a situation where one changes their mind about whether they wanted to a few days later. The push-back on this from women's rights is sensibly very strong, and hence the anger at "forcible" being inserted.
Point being, coming up with new language for softer versions of when folks feel violated (Assange losing the condom e.g.) walks down the slippery slope of all sorts of rape not being rape, by not being 'forcible' rape. So one side wants to keep the line bright and far to the side of protecting women. Most forcible rape is between folks who know each other (purely an assertion of mine).
(For the record, I'm on the girls side on this. Boys should be nice to girls. Period. On that I am a sexist. When boy asks me "if the girl hits first me can I hit her back" my answer is no. Some things are not fair. Racial quotas are not fair, but I support them. Fairness is only part of the puzzle. A pendulum wronging the other side is part of establishing a sensible situation. Deal with it. Being born in poverty isn't fair. Again, fairness is only part of the puzzle and does not trump all.)
On the flip side, say a couple is going at it, and boy suddenly decides to stick his tongue a girls ear, she is grossed out, feels violated, assaulted, and makes some sort of assault charge (as certainly one could were it a stranger in an elevator, same event different context).
In the former case things were o.k. but the actual proclivities of one crossed into something the other had no interest in.
Perhaps one needs a SGW category (sex gone wrong) where all of the various confusing things (or not so confusing but still difficult to define like Assange's condom) are settled as SGW matters. In other words, initially it was consensual.
This still leaves the cavern of the notion that former lovers have a free lunch all hinged on some previous consent. A "yes" based on a perception of one thing cannot be leveraged into a broad "yes". For some reason the concept of severability comes to mind.
In homicide there is a sliding scale: murder 1, murder 2, manslaughter, etc., and at least in some jurisdictions the jury can chose which one to convict for. The prosecutor brings the full load, the judge advises on the layers, and the jury sorts it out. Most of this hinges on intent. In which case, what was Mr Assange's intent? Or the boy with the tongue? The husband with the sleeping wife? The trouble is the durable notion with some of "relax and you'll enjoy it". Hence the strong defense of no means no, which has migrated to only yes means yes.
"Mr Assange, the jury finds you innocent of rape and guilty of SGW 2."
Can of worms you broach, alea.
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