An eighteen-year-old male student’s sexual encounter with a fifteen-year-old female student at St. Paul’s School has led to his being sentenced to one year in jail, followed by five years of probation, and registered for life as a sex offender. Both feel their lives are destroyed. Our fascination with the secret sex rites of the New Hampshire prep school put Owen Labrie’s bespectacled face in all the papers. But the deeper pity and fear the case inspired revolved around a basic question we increasingly project onto the bodies of our young: What makes sex rape?

Based on an incident in a campus mechanical room, Labrie was charged with an array of crimes and convicted of five. The three most serious charges were “aggravated felonious sexual assault,” corresponding to penetration with a finger, penis, or mouth. For a conviction, the prosecution needed to prove that the accuser had shown, by speech or conduct, that she did not freely consent, and that the accused knew or should have known she was not consenting. But the jury acquitted him of these charges, meaning that it did not regard the acts as lacking consent.

The jury did convict him of three charges of misdemeanor sexual assault, which, in New Hampshire, did not require proof of non-consent but were based instead on the fact that the girl was under the age of sixteen. Even if the girl had sworn that the sex was fully consensual, Labrie still would have been guilty of these charges. (Minors cannot legally consent, no matter what they feel.) Similarly, Labrie was convicted of endangering the welfare of a child, a misdemeanor charge that asked the jury only to find that he solicited sex from a minor. Presumably, the jury saw such a solicitation in the so-called Senior Salute, the campus tradition of graduating boys inviting younger girls to a romantic encounter. Labrie’s felony conviction for using computer services—e-mail and Facebook—to “seduce, solicit, lure, or entice” a child under sixteen to have sex was also unrelated to consent. If he had used e-mail to ask the girl to meet and they had unambiguously consensual sex, all these criminal convictions could still stand.

The jury rejected the idea that the girl had expressed her non-consent, but “that does not mean the victim consented to the sexual penetration,” Judge Larry M. Smukler, of the New Hampshire Superior Court, said at the sentencing, last week. “Indeed, it is clear from the impact of the crime that she did not.” At the trial and sentencing, the girl displayed and described many of the attributes now commonly associated with rape victims. She said that she felt “frozen” during the assault, which prevented her from objecting more strongly, and gave trauma as an explanation for inconsistencies in her statements. She said that she had felt worthless and suicidal after the assault, and violated by the legal proceedings. The judge, in his remarks on the sentence he imposed, accepted the victim’s suffering as proof that she had been raped, even in the face of an outright acquittal for that crime.

The case, as was clear from the national coverage, was about much more than these individuals and whether they had consensual sex. As the victim’s father said of his daughter at the sentencing hearing, “She stood up to the entitled culture at St. Paul’s School. She stood up to the rape culture that exists in our society and allows ‘boys to be boys.’ ” The predatory meaning that the Senior Salute took on made it an ideal vehicle for putting what we now call rape culture on an élite campus on trial. But, while a competition of sexual conquests and talk of “scoring” and “slaying” among teen-age boys may be appalling, they reveal the boys’ stratagems to get girls to have sex with them, not to have sex without their consent. Labrie bragged of having “used every trick in the book” during his hookup with the accuser. He told friends that, with girls, he would “feign intimacy ... then stab them in the back.” What we are really talking about here is not rape, as we have until recently understood it, but rather sex that we strongly dislike.

We are in the midst of a significant cultural shift, in which we are redescribing sex that we vehemently dislike as rape, and sexual attitudes that we strongly disapprove of as examples of rape culture. For centuries, the legal definition of rape was intercourse accomplished by force and without consent. Many states have done away with the force criterion, and no longer require proof that the victim physically resisted the assailant or failed to do so because of reasonable fear of injury. With force absent from rape definitions, there has been increasing pressure on how to define consent. In the past several years, on many college campuses, consent has become affirmative consent, according to which not obtaining agreement before each sexual act is sexual misconduct. California and New York require affirmative-consent policies at schools receiving state funding. Some college campuses have gone even further and defined consent as not only positive but “enthusiastic” agreement to have sex. Anything short of that becomes sexual assault. It is not surprising that Judge Smukler, presumably influenced by these ideas, would say that, even though lack of consent had not been proven, this didn't mean that the girl had, in fact, given consent. Far-fetched at the time, Catharine MacKinnon’s 1981 statement, “Politically, I call it rape whenever a woman has sex and feels violated,” is effectively becoming closer to law, even if it is not on the books.

As Labrie’s case shows, even short of a rape conviction, there is plenty of criminal liability available for prosecutors to draw on. These possibilities will only expand with the spread of affirmative-consent standards from campus policies to state criminal codes. The American Law Institute is currently debating draft model penal-code sexual-assault provisions (I am an adviser on this project), which define consent as a positive, freely given agreement to engage in a specific act of sexual penetration or sexual contact. If sex that doesn’t meet these criteria becomes criminal, a lot of people will be committing sexual assault even when they have mutually desired sex. The prosecution of a few, most likely in situations similar to Labrie’s, and their branding as registered sex offenders will feel disturbingly arbitrary. But we will continue to have these scapegoats for a sexual culture that we increasingly reject. Perhaps, in time, education and training will move that culture closer to the new rules, or perhaps not.

If Labrie’s case illuminated the need for education in schools on healthy attitudes toward sex, that education must address the attitudes of both boys and girls. We need to teach young people—in reality, especially boys—how crucial it is to make sure that sex is actually wanted by the other person. And we need to teach girls that they are not powerless in sexual encounters, and not only because they can bring criminal-law or campus disciplinary actions down on an aggressor’s head. Many of us abhor the traditional rape-law requirement that the complainant must have physically resisted the accused, and New Hampshire, among many states, has moved past this. But encouraging girls to stand up for what they do or don’t want in the moment of sexual proposition would not mean going back to the requirement. And their outspokenness at that moment, not harsh measures after the fact, is what is most immediately likely to spare them tragedies like the one that has happened at St. Paul’s.