Beginning in the 1970s, reformers pushed states to stop making victims prove that they physically resisted for a rapist to be convicted. But the idea that rape necessarily includes force has persisted — even though it is “woefully out of step with modern conceptions of sex,” Tuerkheimer argues. This idea is changing, but slowly. “The trend is in the direction of removing force requirements, and defining sexual assault in reference to a lack of consent, but there are a lot of laggards,” she told me.

New Hampshire is among the minority of states that do not require showing force was involved to prove rape. In 1995, the state adopted language providing that a person is guilty of sexual assault if he or she sexually penetrates another person when “the victim indicates by speech or conduct that there is not freely given consent.” This explains how the case against Labrie has proceeded — it’s the source of the central felony charge against him. And so Labrie’s lawyer is trying to convince the jury that the girl did not make her lack of consent clear enough. (The jury also has the option of finding Labrie guilty of the lesser charge of having sex with a 15-year-old, even if she consented, when he was 18. But this is a misdemeanor rather than a felony.)

On cross-examination, the alleged victim conceded that she lifted up her arms so Labrie could take her shirt off and raised her hips so he could pull off her shorts. She also told the police, when they interviewed her soon after the incident, that “other than me saying no to the first part, I don’t think he would have known for a fact that I would not want to do that.” At trial, she explained, “I wanted to not cause a conflict,” and “I felt like I was frozen.” Labrie testified, “I thought she was having a great time.” He also admitted to wearing a condom, and his former classmates testified earlier this week that he told them he did have sex with the girl. (“I wanted to look good,” Labrie said by way of explanation in his own testimony.)

So the crucial question for the jury may well be: Did Labrie know, or should he have known, that the girl did not freely consent? That seems like the right question to ask.

And yet in many cases, consent is still not the test at all. In her article, Tuerkheimer describes a number of such cases around the country. A recent one in Oregon involved a 12-year-old girl who was raped by her father. The girl — who was living with her mother at the time — was visiting her father in his mobile home when he called her into his bedroom, where he was waiting naked, according to the state court of appeals’ account. He proceeded to have sex with her, even though she told him that she “didn’t want to do it.” She also said she did not “put up a fight” because she thought “he would just fight right back.”