Not in the slightest bit.
I mean: you're right that it's sometimes hard to prove rape precisely when it comes down to questions about what counts as consent - but the idea of implicit or tacit consent isn't hard to grasp, and the law has no problem with it. And the fact that it might be hard to prove a rape doesn't mean that one hasn't taken place.
Note that any alleged perpetrator has a massive built-in advantage here, because he doesn't have to prove anything. It's the alleged victim who has to prove that she didn't consent. That works well for people who think it's OK to instigate sex with sleeping people, of course... but it does mean that the deck is stacked against the alleged victim from the start.
Try this from a different context: if the doctor tells me I need an injection, and my response is to roll up my sleeve and offer my arm, then it would be perfectly reasonable, ceteris paribus, to interpret that as consent. If your partner is awake, in control of her body, and wraps her legs around you while naked and in bed, then that might very well be the sort of thing that'd count as consent. It's not explicit, but it's a reasonable supposition in most cases.
Its not difficult.
(
Enzyme is powered by sunlight, Tue 21 Aug 2012, 21:24,
Reply)
Exactly...
...If she carried on with the act then, presumably, it means tacit consent.
If she told him to fuck off and he continued, then it's rape. As it was, in the eyes of the law, up until that point.
(, Tue 21 Aug 2012, 21:56, Reply)