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Your actually wrong. Under New York law a for a rape to occur (if they are not passed out or incapacitated). The alleged victim must give explicit non-consent, either verbally or through physical actions for it to be rape. "(d) Where the offense charged is rape in the third degree as defined in subdivision seven, eight or nine of section 130.25, or a crime formerly defined in subdivision three of section 130.40, in addition to forcible compulsion, circumstances under which, at the time of the act of vaginal sexual contact, oral sexual contact or anal sexual contact, the victim clearly expressed that he or she did not consent to engage in such act, and a reasonable person in the actor's situation would have understood such person's words and acts as an expression of lack of consent to such act under all the circumstances." NYS Open Legislation | NYSenate.gov