1. Peter and Sue are at a party and Sue becomes very drunk. They go back to Sue's room. Sue passes out. Peter has sex with her. Is this rape?
Analysis: Because Sue is unconscious, she is unable to consent to having sex with Peter. When someone has sex with a person who is incapable of giving consent, it is rape. If your partner is so drunk that he or she does not comprehend what is happening, he or she cannot give consent.
2. Peter and Sue are at a party and Peter becomes very drunk. They go back to Sue's room. Peter makes sexual advances and Sue protests. Peter is drunk and feels that he cannot control his desires. He ignores her resistance and has sex with her. Is this rape?
Analysis: Rape does not depend on the perpetrator's state of mind. It depends on what is objectively reasonable in the situation. Peter's incapacity or insensitivity due to drinking is not an excuse for forcing another person to have sex. Drunk or not, it is rape.
3. Peter and Paul have been involved in a sexual relationship for several months. Paul decides to end the relationship and goes to Peter's room to tell him. When he tries to tell Peter, Peter embraces him. Paul protests and resists, but Peter forces him on the bed and has sex with him. Is this rape?
Analysis: Forced sex without a partne's consent is rape, regardless of any pre-existing sexual relationship.
4. Sarah and Sue are alone. Sarah kisses Sue and makes other sexual advances. Sue goes along with it by removing Sarah's shorts. Sue doesn't want to have sex with Sarah but she is not comfortable telling her. Sarah thinks Sue is willing to have sex because she does not protest or resist. They have sex, but the whole time Sue is thinking that she does not want to be having sex. Is this rape?
Analysis: In this situation it appears that Sue has consented to having sex. Although she has not verbally granted Sarah permission to proceed, her act of removing Sarah's shorts would likely be considered consent by a reasonable person. The alleged victim's state of mind is not relevant to the offence if she does not otherwise communicate her feelings or if she acts in a manner that can reasonably be interpreted as consent in light of the surrounding circumstances. As always, if threat or intimidation were present in the situation then Sarah would have reason to believe that Sue's cooperation was not voluntary. In the absence of such circumstances, if Sue is responsive to Sarah's advances and does not communicate her unwillingness, it is not rape.
5. Peter and Sue leave a party together. Peter walks Sue back to her room. While alone with Sue in her room, Peter kisses Sue and makes other sexual advances. Sue doesn't like Peter and doesn’t want to have sex with him. Peter thinks Sue is willing to have sex because she does not protest or resist. He has sex with her. Is it rape?
Analysis: While this situation may seem ambiguous, Sue did not make any statements or gestures that Peter could reasonably have interpreted as an affirmative expression of consent. In such cases, the perpetrator must take reasonable steps to ascertain that the victim was consenting. Lack of objection by someone is not evidence of consent, and consent is essential because sex without it is rape.