So hey, let me catch you up on post-Brand New Day Spider-Man. As you may know, there was some pact with Mephisto that caused years of Spidey canon to be retconned to hell and back. So now Peter was never married to MJ. Among other madness. But I'm not here to debate the merits of BND; I'm just giving you background. The key thing here is that Peter has a female roommate named Michelle, who he apparently had a drunken hookup with once.
There's a Spidey villain called the Chameleon. As you may have guessed from his name, as Marvel is prone to naming villains things like Stilt-Man (he's a man! On stilts!), Chameleon is a shapeshifter.
So in Amazing Spider-Man #603, Chameleon is in the guise of Peter Parker. And while he's being Peter, Michelle comes home and starts haranguing him - and basically, to shut her up, he has sex with her.
So what we have is someone tricking someone into sex by pretending to be someone else. Basically, there is no informed consent.
Hey! We have a name for that!
box_in_the_box has a post about this here, with scans of the relevant pages. In the post, he reprinted the writer's response to the question "Isn't that rape?"
The writer, Fred Van Lente, has this to say: "My understanding of the definition of rape is that it requires force or the threat of force, so no. Using deception to trick someone into granting consent isn't quite the same thing."
He continues with "Which is not to say it isn't a horrible, evil, reprehensible thing that Chameleon did. He is a bad man. He insults paraplegics and dips people in acid too."
Oh, well, as long as we all know he's a bad guy, it's totally okay? Is that what van Lente is saying? I guess. Because writing a character who rapes someone and isn't a total sniggering mustache-twirling eeeeevil person takes skill, and van Lente doesn't have any of that. Got it.
The comments on Box's post get into trying to determine if what happened is actually legally rape. According to the info I have, it is. There is no informed consent. Did Michelle consent? Yes, to Peter. Not to the Chameleon. In Rich Johnston's post, people are saying things like "So, if James Bond doesn't tell women he has sex with that he's a spy, is that supposed to be rape too?" To which I say that there's a big difference between lying about your profession and making someone actually believe that you are someone else - a specific, trusted individual that they have an existing relationship with.
Getting too theoretical? No precedent for this sort of argument? Actually, there is.
A cop in Milford, CT posed as his twin brother to rape his brother's girlfriend. The giveaway? The rapist didn't have the tattoo on his ass that his brother had. But he spent the evening pretending to be his brother - wearing his brother's shirt, referring to himself as his brother. Much like the Chameleon pretending to be Peter Parker.
Is that rape? If so, how can one say that the situation is ASM #603 isn't?
Okay, but that's not a shapeshifter. Need a shapeshifter case? Oh, we've got one of those, too. I Bill Willingham's Elementals, the villain Shapeshifter (okay, silly and obvious villain names are not limited to Marvel or DC) kept up the facade much longer. Much, much longer. As in, an entire fake relationship. It wasn't until Morningstar was engaged to Eric that Eric revealed that he was, in fact, her archnemesis Shapeshifter - that he'd seduced her (yes, he'd had sex with her as Eric numerous times) and led her to fall in love with him just to fuck with her head. The next issue of Elementals opens with Morningstar with a gun in her mouth over what's been done to her. (And I believe Shapeshifter unmasked during sex, but my memory is hazy.)
There was never any doubt in Elementals that what was done to Morningstar was rape. Willingham never shied away from it, was never coy, never said "Well, but Shapeshifter is evil - and besides, there was no force!"
And that bit about force is what set me off to begin with yesterday. Because this is a persistent rape-culture fallacy that continues to piss me right the hell off.
I will say this all nice and bold.
Force has nothing to do with it. It's still rape.
The straight-up legal definition of rape is "non-consensual sexual penetration of any body part by another body part and/or object." (If there's no penetration, it is technically sexual assault rather than rape.) Force is not required. If a rapist keeps the person from fighting them by some other means - verbal threats, et cetera - it's still rape. If there is no consent, it is rape. You don't need bruises and broken bones for it to be rape.
The reason I find this "if there's no force, it wasn't rape" bullshit to be so damaging is that many rape survivors are wont to blame themselves anyway; in this sort of situation, people cast about for what they did wrong. Wore the wrong thing, went to the wrong part of town. Didn't fight back - just said "no", but didn't get beaten senseless. So rape culture says "oh, if you didn't fight, it wasn't really rape."
To bring it to personal experience very, very briefly: I didn't fight. I'm 4'11" and weighed 90 pounds. He was a much larger man, and armed, and there was absolutely no conceivable way for me to get out of there intact. I didn't fight - I went limp. Totally rag-doll. Because another sad awful truth is that many rapists get off on the struggle. So I said no, very freakin' clearly. I made my lack of consent plain. I went limp. Trust me. There was no way that could have been mistaken for consensual sex.
But according to Fred Van Lente, that wasn't rape. Huh. Thanks, Fred - I guess you know more than the Las Vegas Police Department, more than the Boston Area Rape Crisis Center, more than our whole justice system.
(FWIW, I never blamed myself, and I have never doubted what that was.)
So that's van Lente being an ignorant asscactus and spreading typical rape-culture misinformation.
Let's backtrack to the actual legal question. Is it rape? On Johnston's post, commenter CharlesRB says quotes from the actual New York State law (for the non-comics-readers, this takes place in NYC) regarding rape:
A person is guilty of rape in the third degree when:
1. He or she engages in sexual intercourse with another person who is incapable of consent by reason of some factor other than being less than seventeen years old;
2. Being twenty-one years old or more, he or she engages in sexual intercourse with another person less than seventeen years old; or
3. He or she engages in sexual intercourse with another person without such person’s consent where such lack of consent is by reason of some factor other than incapacity to consent.
"In the Marvel Universe, you can bet 'was disguised as someone else via shape-shifting' would count as 'some factor.'"