Comment by rich_sasha

It seems more complex than even what the law says, as in the end it is up to a judge/jury to make the call.

I don't know about Germany or the US, but Poland has (a) fairly strict anti-rape laws, and (b) a number of cases presented in media, where the court's final opinion was something along the lines of "meh, what's the big deal?".

I'm not sure that this is a general characterisation (might be) but certainly illustrates the law vs. decision maker split.

From what I can gather in the instances of other crimes, the same is true in e.g. US. You cannot shoot unarmed people running away from you, but then courts let people get away with it.

At the end of the day, the main sniff test, only somewhat moderated by law, seems to be "does this look like rape to me".