Couple of scattered thoughts I've been having on the subject.
People mostly moralize through their sense of empathy (when they're not being hypocrites). We judge and intuit what we believe to be right and wrong through the simple process of imagining ourselves in others' shoes and determining what might be done best for us then. It occurs to me that if that were so, there is nothing very objective about morality.
It shouldn't surprise me then that whenever I come across a discussion about rape among guys on the internet, there will suddenly be all these 'grey' areas that seem to revolve around the worry that "that can't be rape, it's something that most guys might very well do in blissful ignorance!". The idea behind that is, surely if one does not intend to be a rapist, one cannot possibly rape. I don't know. I'm not a guy, so I will likely never be at risk of being accused of rape, or 'accidentally' raping someone. But I can't sympathize with that worry when their token response to that so often calls for a narrower definition of rape.
Consequences trump intentions. Is it really so difficult to not initiate sex with a drunk person? If you are drunk as well, then that doesn't really count I guess, but I'm talking about relatively sober people who would much rather blind themselves to how alcohol distorts true consent and accept any sexual situation arising from it at face value. Because it's 'freely' offered sex. Because the other person got themselves drunk, didn't they? No one's forcing anyone, we're just going with the flow. Or something.
Similarly, you'll have people who think that initiating sex while someone is asleep is not rape, if both parties have had previous sexual relations. Without navigating the minefield of contextual relationships and implied and/or prior consent, I think we should be able to safely say, objectively, that it can be. But with context, where do we draw the line? Where does it cross over from playful foreplay to invasive violation?
For the Julian Assange sexual assault allegations, in my opinion, it was the forgoing of the condom despite the alleged victim's insistence on it in all previous sexual interactions with Assange. In the absence of a clear indicator like that though, what makes it rape? When the alleged victim doesn't want it, or when the alleged rapist is aware the victim doesn't want it? As we all know, two separate individuals' versions of reality won't always line up, but in this case, shouldn't the alleged victim's reality trump the perpetrator's – after all, who's dealing with the feelings of violation here?
So, liability. Haven't we come far enough to admit that rape begins with the rapist? (Most) people accept it at face value, condemn victim-blaming as a matter of fact, even if they don't always recognize when it's happening, but what does it really mean? It means each and every one of us is accountable for what we sexually do to another person. We're not born rapists or non-rapists. Just like drivers are potential killers waiting to happen, can we say we're potential rapists* waiting to happen?
(*Just as drivers who caused someone else's death is on a different level from premeditated murder, the rape I talk about here is arguably not in the same league in terms of reprehensibility, as with someone who actively sets out to render someone powerless by means of drugs/alcohol or physical force or maybe even knowingly taking advantage of someone's vulnerability i.e. they were already drunk. But the outcome is still the same for the victim, they're dead/have to deal with equally powerful feelings of violation and/or shame.)
It means that our liability should go beyond accepting a 'No' to ensuring a truly, freely-given 'Yes' in any sexual situation. It means all the hypothetical situations I outlined above can and sometimes do result in a rape.
Rape can come from more than the mere intention to forcibly render someone powerless. It is often power play, but it can also come from disrespect and the subsequent dehumanizing of people considered inferior and thus already powerless ('sluts', prostitutes, homosexuals, etc.) or sometimes it's just pure self-centeredness and a dollop of ignorance. Lots of people would never imagine themselves becoming rapists, and sometimes to them that means nothing they do could ever be rape. It's a dangerous line of thought.
Note: I'm not suggesting that any of what I say here should be legally enforced. I just thought we could maybe start trying to adjust the ways we think about rape.