That progression is what I meant when I said that if I were a juror, I'd want to roll back a minute or so before the penetration, to understand what happened. When I read the original example, the thing that immediately struck me as inexplicable is the sudden appearance of the penis in the vagina.
What! where did that come from? That's not this works. In the movies, the guy will work wonders. He'll throw the woman here of there, sometimes lifted up and against a wall, like one of those virtuouso well-built porn starts, and hit is target spot on. Real life doesn't work that way. There's so much more groping and positioning, and most of the time, the woman has to help the guy or he has to probe like he has feelers.
If a lawyer were to question the witness, I'd expect to find details such as: he'd got her underwear off with help from her. that he'd stimulated her, that he had repositioned his body in a way that made it possible to enter her, that he has using his penis to probe around her vagina... the details would vary but there would almost certainly be some such lead up, lasting some length of time. I'd be open to testimony that said otherwise, but I'd want to hear it specifically.
The second thing I'd question is that she could not simply tut-tut him. Saying no is in pretty integral to couples who have not yet decided how far they want to go. For instance, a girl might tell a boy that she's okay only kissing him. They're kissing and he places his hand on the narrow of her waist and starts to caress her, moving it toward her breast. This probably happens a million times all around the world. It is not the act of some weirdo, but the method but which consent is probed. Heck, she may not even say she's okay being kissed. He might move in and she might allow it. A small twitch in this direction or the other is usually sufficient. Millions of women do this, even if it is their first time.
Or maybe she allows his hands on her breast through her clothes, and then his lips go down to her neck. Again, no explicit permission was requested. He might progress lower moving from neck in the direction of her breasts. And so on... none of this is sexual assault as such. For it to be sexual assault, we'd need something more than the progression. We'd need some indication -- however small -- that the woman did not want this.
And, importantly, in the progression above, we'd want this indication to be external. We'll agree that it is not sufficient to say that she was moaning with pleasure while being disgusted with herself. But, similarly, we can't take her unexpressed shyness or other internal state of mind as enough to make this sexual assault.
We know that Sally had no problem talking about sex and limits. To me, as a juror, it does not sound plausible that she suddenly loses all agency and does not do what is so routine that it is almost second nature.
These are the things I meant when I said that one has to make the concept concrete. One cannot simply scan for one aspect.
Also, rape is mot just consent. Nor it is just sexual assault. Another way of answering "what is rape" is not to start with concretes first, but to ask why we need this concept. We're talking of a concept that is primarily a legal concept. Just as we have misdemeanors and felonies, to distinguish degrees to crime, we distinguish between rape and sexual-assault. Attorney's ill go further and may have multiple "degrees" of sexual assault. Rape comes beyond all that. So, when we ask "is this rape", we're asking "is this an extremely serious sexual assault that has gone beyond other types of sexual assault".
But, there's more... if we keep the concept real, we understand that the whole idea of such concepts is to indicate the penalties. If we are in the U.S., the average sentence for rape is over 9 years, with the criminals ending up actually serving over 5 years. So, when we ask: "is this rape", we're asking "is this a sexual assault that is serious enough to send a person to jail for 5 years or so".
One might reject this by saying that that is a different issue. Why talk about sentences? Well, take a rape where a taxi driver veers into a dark alley, holds his passenger down, tears off her clothes, and ignoring her screams and fists, violates her. Perhaps he is strong enough that he does not do her much lasting bodily harm. The bruises might heal in a few weeks, but we all understand that the trauma will be there for ages, perhaps forever. We understand that this goes beyond sexual assault where someone feels up a girl in a crowd. We understand that we want to get the perpetrator off the streets for a long time. All this is the reason we need a separate concept in the first place.
So, when one thinks of concepts, one cannot divorce this from the need for the concept and all the concretes around that need. We need the concept of rape to describe serious sexual assault for which we're happy to deliver at least some serious jail time. All this is part of how one thinks about concrete instances. That's what I meant when I said that it goes beyond scanning words in an example.