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.”
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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.
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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.
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.