The phrase you're looking for is "enthusiastic consent". You're not looking for a signed contract. You're looking to have absolutely no doubt in your mind that your partner genuinely wants to do what you want to do. That just happens to be about a thousand times easier if you can talk about it like a (sexy) grownup.
Believe it or not, one goal of this policy is more, and better sex.
I don't disagree that being able to talk openly about these things is good.
I assert, though, that the climate today makes it very treacherous to do so--and that even if it didn't, there still is a chicken-and-egg problem in learning how to do it. Vocaroo and similar services seem to be a starting point for folks these days.
Honestly it isn't something you just know how to do (especially if you are prone to over-analysis of your actions), and the chance of making a lot of trouble for yourself is non-trivial.
"No doubt in your mind that..." != "It is true that..."
This is the problem with your argument. I'll admit it, I don't explicitly "ask consent" and there have been times where there was "no doubt in my mind", and yet, I was rejected. :(
But if I was rejected, then I've clearly committed sexual assault in the most strict sense.
It's called "misreading a situation". You may think something is enthusiastic consent, but it isn't. Hence, why I will continue to ignore your advice and "live dangerously" by attempting to interpret the situation and predict the other partner's desires by other subjective and unreliable means such as body language and the nebulous concept of "where we are in our relationship".
Just as long as you understand that in this context, "live dangerously" means that you might rape people without meaning to, just because you couldn't think of a sexy way to say, "So do you wanna fuck?"
1) The legal definition of rape (at least in most states?) makes it such that one cannot "accidentally" do it.
Keywords: "[by means of] force", "duress", "physical resistance", "objected verbally".
A woman who was:
* Not forced
* Had no duress
* Not physically resisting
* Not verbally objecting
* Mentally capable of making decisions
...is considered to be consenting. In other words, and perhaps contrary to the way you believe it should be, THE LAW REQUIRES YOU TO EXPRESS YOUR DISCOMFORT OR ELSE THERE IS NO PLAUSIBLE WAY THE OTHER PERSON COULD KNOW. Sorry. :(
If a person has sex but later decides they weren't really that into their partner, wished that they didn't, wished that they had stopped it earlier -- it's not rape. Regret and the discomfort / dissonance that comes from it is a far cry from traumatic, forced rape.
2) You know long before you were "accidentally raping" someone whether or not they were consenting.
Excerpts from a random hit on the subject of enthusiastic consent, in re: Stubenville:
In the aftermath of the guilty verdict, several people observed that many of the teens at the party didn’t realize that this was rape. To them, the fact that the victim was unconscious didn’t mean anything. “I didn’t know this was rape,” said one witness. “It wasn’t violent.”
...
In many ways, the focus on “no” puts the burden – yet again – on women to rein in the libidos of men who presumably can’t control themselves… and in many ways can put them at a disadvantage. Women are often socialized to be non-direct for fear of causing offense; many women are frequently uncomfortable with being up front with saying “No, I don’t want this.”http://www.doctornerdlove.com/2013/03/enthusiastic-consent/
This is much more complex than you make it out to be, and that's precisely what obliges us to set guidelines that encourage folks not to rape rather than assuming not-rape as the default.
Seems pretty straightforward to me. There are legal requirements for an action to be considered rape.
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In the first case, it really is quite trivial. Unconscious is not making a choice. Hence, "mentally competent". I suppose you could accidentally rape someone if you didn't know what rape meant, but if someone only told you "rape is sex without consent" and you fucked an unconscious person, surely if they took 2 seconds to think about it, they'd realize there is (and can be) no consent. I'm sure the people didn't really think it was perfectly fine to have sex with them.
--
In the second case, it may be true that women have a more difficult time saying "no", but that doesn't absolve them of responsibility. Perhaps it is a failing that more women have sex when they don't really want to (but never express it), but legally, it would not be rape, so I don't see why this is being brought up. I agree that this scenario is unfortunate and but it doesn't warrant locking up a person. Yes, we should all strive to be sensitive to the needs of our partners, but realistically, some girls even feign consent when they really mean "I don't care much for it" or "if you'll cheer up afterwards" or "if you'll like me more" -- i.e. disinterest or questionable motives.
In summary, let's keep rape as a reserved term for obvious and gratuitous violations. This "accidentally raped" is kind of stupid.
Also, having thought about it slightly more, I think you're confusing "unwanted sex" with "non-consensual sex". Neither is a good thing, but there is a strong different, especially in terms of legality and trauma.
Men and women have unwanted sex all the time. They do it because they don't want to let their partner down, because they think it is their "job", because they want to get something, because they are bored, because they want to feel wanted, because they just want to feel loved, because they haven't in a long time, etc. -- not always the best reasons. Typically, those feelings can be resolved in other ways.
We, as lovers, should strive to reduce the number of unwanted sex events as possible, and to do so requires an open bidirectional communication channel. However, while it may be sad that women are more prone to agreeing to unwanted sex, this is not the same thing as //raping// someone. I think it's really important to make the difference, because for one we say that the relationship is a bit off, in the other, we lock a person up and mark them for life.
It's highly inappropriate for you to refer to "kissing someone", even if it's unwelcome, as "rape". Sexual assault, that's ok, even though I don't agree with it. But calling it rape is very disrespectful, maybe even insulting, to the victims of actual, violent penis-in-vagina rape.
Men more than women? I'm not disagreeing or agreeing, but [citation needed]. I've never heard of that being true, so I'd like more information. I mean, the fact that we typical think of rape as man-on-woman kind of speaks to our perceived frequency, yes?
Ah prison rape. Yes, I hadn't considered that, but that would make sense. I'm not sure that prison statistics are really relevant to the original topic though, as far as defining what typical interactions are like, but does seem like interesting trivia.
Believe it or not, one goal of this policy is more, and better sex.