It does go round in circles. No one here will convince the other party.
And I thought it was pretty obvious James didn't say Yes in the apartment, but also didn't say No. He just says nothing, and then that he would need to forget she's the Commander. Nowhere in there is a Yes or a No. "Would need" is a hypothetical look into the future what would need to happen if James were to actually give in. Not a No.
Like I said before, I'm thinking this is still a matter of interpretation and perception, and like Vanilka said, we don't know what happened in the bedroom. But I sure as hell won't believe that Bioware aimed at rape. And to me James doesn't look as freaked out in the morning, regret, yes, but not freaked out.
And while others are super drunk, James is still very normal. There's no slur in his speech, he doesn't come across as drunk as Tali. Or Grunt.
Anyway. Yeah, Shepard's behaviour might be considered as rapey by US law, but not for me, and not for other countries. Had he gone in the next morning and accused Shepard, or even reported it as rape, then we could be sure. But apparently he played along, not seeing it as rape as he still treats Shepard normal afterwards. It was a mistake and they will not mention it again, and that's it.
I'm still thinking this is a result of a party where pretty much everyone consumes a lot of drinks (including Shepard for... headcanon reasons), and while not-so-nice things can happen there of course, I'm sure James is also well aware of that. If Shepard doesn't pursue him and Ash is there, they also can go for it. It's just giving in to the party mood, and from what James said earlier he is no stranger to that.
Haha, I really should stop posting here, it's not leading to anything really.