To begin, I looked in Virginia. The Virginia rape statute has the basic three conditions which traditionally make up rape
§ 18.2-61. Rape.No rape by fraud there.
A. If any person has sexual intercourse with a complaining witness, whether or not his or her spouse, or causes a complaining witness, whether or not his or her spouse, to engage in sexual intercourse with any other person and such act is accomplished (i) against the complaining witness's will, by force, threat or intimidation of or against the complaining witness or another person; or (ii) through the use of the complaining witness's mental incapacity or physical helplessness; or (iii) with a child under age 13 as the victim, he or she shall be guilty of rape.
I dug around in some other States and found rape by fraud in Tennessee.
39-13-503. Rape.I also found a limited version of this in California.
(a) Rape is unlawful sexual penetration of a victim by the defendant or of the defendant by a victim accompanied by any of the following circumstances:
. . . . .
(4) The sexual penetration is accomplished by fraud.
261. (a) Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances:New York has a statute which seems to follow the same legal model.
. . . . .
(5) Where a person submits under the belief that the person committing the act is the victim's spouse, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief.
§ 130.25 Rape in the third degree.To address these in reverse order of presentation, the New York law seems to be limited (defined down) by the courts.
A person is guilty of rape in the third degree when:
. . . . .
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.
The legislation was designed to address the so-called date rape or acquaintance rape situations where there might be consent to various acts leading up to the sexual act, but at the time of the act, the victim clearly says no or otherwise expresses a lack of consent, and a reasonable person in the actor's situation would understand that the victim was expressing a lack of consentSo, it doesn't seem to cover rape by fraud.
People v. Cummings, 2011, 916 N.Y.S.2d 432.
The California statute seems to be a remnant from a legal thread which used to be part of the law in many States. I saw references to former laws in Arizona and North Carolina which had the same thing. Apparently, there was a big problem in times gone by with men trying to convince women that they were their husbands in order to have sex with them.
The Tennessee statute is the one which is the most straight forward as a rape by fraud statute. However, there only seem to be two cases where the appellate courts address this. In each, the type of fraud is similar to that which is in the the older legal thread. In each, the lie told was such that the person having sex thought they were having sex with an entirely different physical person than the one with whom they were actually having sex with. In State v. Mitchell, 1999, C.C.A. No. 01C01-9612-CR-00502, a man convinced women he was their boyfriend and that he had a fantasy that they would have sex while she was blindfolded. In State v. Brigman, 2003, C.C.A. No. M2002-00461-CCA-R3-CD, a man convinced young men that if they were blindfolded a woman would come and perform oral sex on the young male, but did it himself. Both of these seem to indicate that conviction for rape by fraud is a difficult case to prosecute which would only occur in incredibly unusual situations.