It was my impression from the OP that “them both” referred to Denise and her husband. Only later did the interloper go upstairs solo and discover Denise in the room alone after hubby had left in response to the phone call.
There’s of course no guarantee I’ve parsed the OP correctly, or that his admittedly secondhand version matches actual events or …
*He was old, pot-bellied with a big nose," she said. “I told him: ‘It wasn’t you in the photo.’ … I left in disgust.”
Asked whether he had committed rape, he reportedly said: “For me, when she entered the bedroom naked, she was consenting. At that moment, she couldn’t care less what I looked like.”*
Rape by being ugly?
No, you got it: Denise and Nathan went upstairs together. Joey showed up later, after Nathan left to take a phone call.
FWIW, I have an update, if this is still interesting.
Denise’s official version -what she told the police - has shifted closer to the statutory definition of sexual assault.
She said (I’m paraphrasing): “I had too much to drink, and blacked out. The next thing I knew there was a guy on top of me, and Nathan (her husband) was pulling him off. I did not consent, and would not have consented, if I’d known what was happening.”
Now I don’t have much experience with being black-out drunk - in fact, I’ve only done it once, twenty-something years ago. (And don’t remember it.)
But it’s possible Denise is telling the truth, as far as she knows. It’s possible what she remembers now is different than, or less than, what she remembered the night of the party.
And anyway, it’s not that different: it’s just that in the first version the main thing she was saying was “I didn’t know it wasn’t Nathan”. Now she’s saying (according to what I was told) she didn’t consent, period.
If any version of her story is true, she never formed the intent to be adulterous or otherwise breach monogamy. That means she was raped ethically if not legally; if she was blackout drunk, I assume that also meets the legal definition, though IANAL and thus IANATXL.
Some states have rape-by-deceit laws. Texas doesn’t. If what she’d said was, “I was drunk; I had sex with someone, but it was the wrong guy,” I think the investigation would end there.
The problem is that black-out drunk and unconscious are two different things. She could have been black-out drunk, conscious, and making decisions (perhaps bad decisions) all at the same time.
Yeah. This one is gonna be an ugly *he said she said *once it gets to trial.
The specific law of rape by deceipt is to say that the consent that was given, is not consent if it is obtained by deceit… In Australia this has been used in court to say an Indian man deceived a woman when he said he was blonde (Scandinavian look) - they talk about looks because he didn’t say “I am Scandinavian” you see, but he did say he was blonde with white skin. This was taken to be far different to poorly translating their job title or misleading about uptown vs downtown or something. Oddly, it suggests that if he used bleach to make his hair and skin white, he’d been ok ?
There doesn’t have to be an official law on rape by deceit - by impersonation or by lying.
Its clearly devaluing any consent, as the reason for the deceit is to obtain a false consent !
Consent is a communication from one person to another.
It is not that there has to be communication of a lack of consent, there has to be communication of consent. Deceit then causes that to be invalid.
If you pretend to be man A, and the communication is as if to man A, then the consent is given to man A…
This is present in many other criminal cases… eg if a bank incorrectly gives you money, and you would surely know it was a mistake, then it is theft to make use of it.
If you obtain consent by deceit, then you surely know that it is not really consent.
The OP’s case isn’t quite deceit, because his defense is “I went into the room and she seduced me”. That may in fact have happened, which is suggested by the “I woke up to my boyfriend pulling him off me.!”. Thats when you wake up ? No thats not it.
Thats an embellishment.
However its clear she was so drunk… he should have known she was so drunk that there was no consent to HIM.
Any update?