sailorman has left a new comment on your post "Understanding And Misunderstanding Genuine Consent...":
The unfortunate reality is that your statement regarding legality is not really true. Mind you, this is most assuredly not a good thing. But I think it's important when discussing laws to distinguish between "should be" and "is." So when you say this:
For sex to be consensual and legal there needs to be a clear presence of freely and legally given consent.
That is wrong. We don't define that which is "legal;" we only define what is illegal Most laws (including rape laws) don't talk about what you CAN do, they only talk about what you CAN'T do. IOW, technically there is often no such thing as "legal" sex--there is only "non-illegal" sex. Similarly, the definition of legality is always skewed towards the defendant, so it's really a problem of proving lack of consent.
So your sentence is backwards.
You say "Legal = clear presence of consent."
but in fact it is "Legal = non-illegal = no clear presence of NON-consent."
Confusing? Yes. But it is a crucial distinction, because it serves to illustrate the problem with rape law and with criminal codes in general: Lots of behavior which is BAD (like non-freely-consented-to sex) may still be LEGAL.
Sailorman is the one who is getting confused about the definition of rape. His decision to add double negatives changes the definition of what is legal unnecessarily.
To test the validity of Sailorman's definition imagine that someone who was allowed into another person's house, at a party for example, found the homeowner's coin collection and then walked out with that collection without being challenged.
In this action there was no clear presence of NON-consent which by Sailorman's definition means that this action must be defined as non-illegal. Yet we -- and criminal law -- recognize that the person who used stealth rather than a gun to steal someone else's possessions is still a thief.
This is true even if the homeowner greeted the future thief with, "Make yourself at home."
The actual definitions are as follows for both crimes:
illegal = sexual contact/taking someone else's possession without freely given consent
not illegal = sexual contact/taking someone else's possession with freely given consent.
Both of these are clearly defined with no gap between the 2 and with no gap between the reality of the offense and the reality of the law related to that offense.
The traditional backwards definition for rape which Sailorman provides catered to the desires of those who wanted the legal right to proceed when they did not have the other person's freely given consent and when there was no stereotypical presence of non-consent (other person shooting you so you wouldn't interpret "no" as "yes, but I don't want you to think I'm easy.").
This gap is where most rapists falsely claim, "I might be a jerk, but I'm no rapist."
(a) "Consent" means words or overt actions by a person indicating a freely given present agreement to perform a particular sexual act with the actor. Consent does not mean the existence of a prior or current social relationship between the actor and the complainant or that the complainant failed to resist a particular sexual act.
(b) A person who is mentally incapacitated or physically helpless as defined by this section cannot consent to a sexual act.
(c) Corroboration of the victim's testimony is not required to show lack of consent.
As this legal definition shows consent can be clearly defined in positive terms while the law as a whole defines what is illegal.
The only question in Minnesota is which degree will apply: Criminal Sexual Conduct In The [1st through 5th] Degree. All 5 degrees are felonies yet many people treat anything less than first degree as if it isn't real rape.
With a positive definition of consent the prosecution still has to prove that the alleged rape victim did not freely consent to a particular sexual action. This proof from the prosecution wouldn't be enough to prove rape under Sailorman's definition.
I'll repeat: Consent is something you do not something you fail to do. We have no problem with this concept in practice and in the criminal law except when it comes to sex crimes.
Any jurisdiction which still has any criminal statutes on the books which match Sailorman's confused definition need to be updated ASAP to prevent continued injustice and false accusations against rape victims.