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Criminal laws differ from jurisdiction to jurisdiction and there is no one size fits all answer for every jurisdiction, but in general, US jurisdictions these days define rape/aggravated criminal sexual assault by statutes as a penetration by force without the consent of the victim - and they usually deal with the consent issue in the statute, defining a class of victims who are incapable of consent, people who are unconscious, mentally disabled, or so intoxicated that they are unable to appreciate what is going on and to consent to it.
Getting to that point in law was a slow process of change, state by state. In the old days of the "common law" crimes, rape was usually described as a penetration by force "against the will" of the victim rather than "without the consent". That made it easier to defend a rape case where there was little or no evidence of any resistance. Early in my career, in the JAG Corps in Germany, I defended a soldier who simply started by making out with a female soldier sleeping on a sofa in the day room of their company, fully clothed, during the daytime. That woke her up. It progressed to intercourse. The victim admitted in the Article 32 Hearing that she never resisted and never told my client to stop, though she did not want to do this. There was no weapon, and no threats or offers of violence were expressed. The charges were dismissed. Under the UCMJ at the time, the offense was required to be "against the will" of the victim and the investigating officer and the commander concluded that the case was too weak to have much of a chance of conviction at trial.
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Extremism in the defense of Liberty is no vice. . . Restraint in the pursuit of Justice is no virtue.
Senator Barry Goldwater, 1964
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