KellyM, I’m sure the voters of the Commonwealth appreciate your discerning judgement, and will take it into account as we elect our legislators this November.
You’re right, however, that we’re in IMHO, and that the OP asks, “Is this a form of rape,” giving rise to the inference that the question is, “Should this be criminally punishable,” rather than, “Is this criminally punishable.”
So, putting aside my conviction that, in the vast majority of jurisdictions, the OP does not describe a crime, my opinion is that it ought not be a criminal act.
Without question, the consent to sex is a key element. But to suggest that consent cannot exist without some sort of full disclosure on the parties thereto is to create a class of crime well beyond the ordinary common law.
For instance, what of the local janitor, who claims to be a stockbroker one night at a bar. Does the woman’s eventual discovery of the truth, and revulsion at having slept with a mere janitor, transform the act into a crime? If we accpet as true her assurances that she never would have slept with a janitor, under the definition you’re urging, that misrepresentation becomes material, and the act a crime. And if that hypothetical, too, is clear-cut, what of the woman who sleeps with a stockbroker who only made $65K last year, but told her he was a $2M man? Again, we accept, as true, her assurance she’d never sleep with a man making less than seven figures. Is his act a crime?
What of the man who claims to like the Grateful Dead, to bed a fan, when in reality he can’t stand the band? Even if the misrepresentation was the only reason for the sexual consent, it is not criminal.
Coercion need not be physical, and fraud that tends to create a coercive environment is clearly criminal. And I agree that mere lack of verbal or physical resistance does not, of itself, constitute consent. But giving knowing consent, within the meaning of the criminal sexual assault laws, to sexual activities, does not require a complete and accurate résumé from each partner.
…in my opinion. Which, happily, matches up closely with the vast majority of jurisdictions in the United States.