Eugene Volokh asks, looking at a case where there's good reason to want to answer yes.
But the legislature deliberately enacted a law that made it an aggravated felony to have sex with someone if “at the time of the sexual assault, the victim indicates by speech or conduct that there is not freely given consent to performance of the sexual act.” An alleged victim’s being passive — and, again, passive without the defendant’s use or threat of physical force — is a reaction that is broadly consistent both with absence of consent and presence of consent (even if not necessarily enthusiastic consent). In such a situation, passivity shouldn’t satisfy the statutory requirement of the victim’s “indicat[ing] by speech or conduct that there is not freely given consent,” especially since the defendant’s guilt must be shown beyond a reasonable doubt.
