This is something that happened to friends of friends. Although I know them by reputation, I only met one of them once, and only for a second. So, I can’t verify, and I don’t know all the details.
Some background: my friends are party people. I’m not. The time I met “Denise” was at one of their parties.
The story goes like this: Denise and “Nathan” are at a party. They’re married. At some point they go upstairs for some quality time together. Nathan, who just started as general manager at a new business, gets a call. It’s one of the owners. He says something like “I’ll be right back” and leaves.
“He” comes back, one thing leads to another, and pretty soon they’re doing the beast with two backs. Then Nathan shows up, there’s a huge fight, “he” get thrown out of the house (I’ll call him “Joey”). Joey says she came on to him, he didn’t know she was married, blah blah blah. (Supposedly, there’s no way he couldn’t have known that, but whatever.)
Nathan and Denise are now separated, but in counseling. Denise says she was raped, because she didn’t know Joey wasn’t Nathan. Nathan says there’s no way she couldn’t have known the difference.
Anyway, the question is in the title. If you believe Denise, is it rape?
OTOH, depending on the law in your jurisdiction, to make the legal threshold “rape by deception” may require intentional deception, not mere mistaken identity . Though in this case it seems mostly a matter of the broader definition of “consent not actively sought” as opposed to the narrower legal definition.
Do “Nathan” and “Joey” look identical, or similar enough that a mistake could be reasonable? Was it a costume party, and they were wearing identical masks?
And English case (R v Collins [1972] EWCA Crim 1) where the law on rape by deception was laid down.
As it is, no, its not going to be rape, in any juridiction unless you can show that Joey’s had no belief in consent or belief that consent was given was one that was unreasonable. Thats a factual question, not a legal one.
If we’re in Texas, it won’t be “rape”, as that’s not a listed crime in the Texas Penal Code. “Sexual assault,” however is. It can be found at Section 22.011: PENAL CODE CHAPTER 22. ASSAULTIVE OFFENSES In subsection b of that section, we get to what lack of consent means.
I don’t have the time now to hunt down case law, but I’d be interested to find out how Texas parses a case of mistaken consent, if that’s actually what happened.
As I’ve written here before, I’m not a lawyer. Go hire one if you feel you need one: my friends can use the work.
Like I said in the OP, my information is limited, and second-hand.
Denise was probably lit. She drank like a fish at the party where I met her. My impression is that’s not uncommon. My friends (let’s call them “Harry” and “Sally”) are big drinkers. When I hang with them, I’m usually the least intoxicated person there.
I’ve never met Joey or Nathan. Sally says they look alike: Harry says she’s crazy. (You can guess which sides they’ve taken.)
After listening to them argue, it sounds like they have the same height and build, but nothing else in common.
No diss, but the OP is so badly written I can’t believe anyone’s even trying to discuss this. You have to read it twice to follow that Hubby Leaves, “Joey” Shows Up, and then “Joey” starts bonking “Denise” - the referent “He” is completely unclear.
Grammatical issues aside, the whole complaint/issue boils down to
Even once you figure out that He ain’t Hubby, it says nothing at all about what he (“He”) said or did, she (“Denise”) said or did, or anything until Hubby “Nathan” surprises them.
Go look up why Trapper John McIntyre got his nickname and you’ll see why I can’t really believe this was any form of rape or assault… sounds a LOT more like a hasty, pathetic excuse from “Denise” because she was horny enough to grab the next cock that walked in, and maybe some whut-fer for the one that walked out.
I, personally, find it difficult to believe you can’t tell the guy fucking you is not your husband who you’ve had innumerable times.
His voice, the feel of his face, the feel of his dick, his sexual style, his musculature, etc., are all things that are so ingrained in your mind that it should seem reasonable to notice at some point that they are different.
Unless:
A. You are very drunk and your ability to distinguish these things is greatly impaired.
Or
B. You wanted to get fucked by “he” and, when caught, needed a way out and claimed rape.
How likely would it be that you would mistake your husband/wife or boyfriend/girlfriend for another person a low light situation if you were pretty drunk? Even with being drunk and a low light scenario it would IMO be pretty unlikely if (and this the main point) you were in state of mind that you cared.
A horny, drunk man or woman is going to tend to make bad decisions if given the opportunity. That’s a lot more plausible than the evil twin scenario.
That notion has been added in the discussion. It doesn’t seem to be a part of the OP. We (and maybe the OP) don’t know why “Joey” was riding the bouncing beaver.