"Rubenfeld is right that most instances in which one of the parties having sex (or both) have failed to give consent to the act, the act is morally wrong. Immoral sex need not be rape (or sexual assault), however. For example, if both sex partners are minors, they are not legally in a position to give consent. If they have sex, they have not given legal content. But it doesn't follow that one person raped or assaulted the other. 'Rape’ is better understood as follows: A’s sexual encounter with B counts as A's rape of B, just in case (i) A is in a position to give informed consent to have penetrative sex, (ii) A knows or ought to have known that B is not in a position to consent to have penetrative sex or is not verbally or physically agreeing to have penetrative sex, and (iii) A is proceeding to have penetrative sex with B, despite (ii)."