Well whether it is rape or not will probably be up to a jury or the country you're in
http://www.cps.gov.uk/legal/p_to_r/rape_and_sexual_offences/consent/The Sexual offences Act 1956 contains no statutory definition of 'consent'. Juries must be told that the word should be given its ordinary meaning, and that there is a difference between 'consent' and 'submission'.
Lack of consent may be demonstrated by:
The complainant's assertion of force or threats;
Evidence that by reason of drink, drugs, sleep, age or mental disability the complainant was unaware of what was occurring and/ or incapable of giving valid consent; or
Evidence that the complainant was deceived as to the identity of the person with whom (s)he had intercourse.
Thats for the UK but I'd look up your own countries laws if you're interested.
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