College student Abigail Finney thought she was in bed with her boyfriend in his dorm when she had sex with him.
But she was horrified when she got up to go to the bathroom and realised the man in the bed was instead her boyfriend’s friend Donald Grant Ward.
Confused as she had fallen asleep next to her boyfriend, she ran to her dorm room at Indiana’s Purdue University and discovered him sleeping soundly in her bed.
He moved to her dorm room three hours earlier as he couldn’t sleep with her taking up so much space in the small bed.
Telling her story to Buzzfeed News, Ms Finney said she told her boyfriend and they reported it to police. Ward was charged with two counts of rape.
“I remember him grinning at me. It was a freaky image,” she said.
“I was just kind of – I was frantic. I didn’t know what was going on.
“I was like, ‘I feel violated. This feels wrong. But I don’t know if it’s illegal’.”
To make the nightmare worse, Ward’s actions were not considered rape because the sex was technically “consensual”.
Tricking somebody into sex through fraud, deception or impersonation is not illegal in most states across the US. Buzzfeed reports only California, Idaho, Missouri and Tennessee have laws that make these actions illegal.
College student’s ‘second trauma’
Ward’s defence lawyer Kirk Freeman argued his client’s behaviour was “ungentlemanly” and the jury agreed it was not illegal.
“Something can be bad, something can be against cultural norms, against etiquette – doesn’t mean it’s a crime,” he told Buzzfeed.
“So there are lots of things in this world that we wouldn’t ourselves do, but it doesn’t make it a crime.”
He claims prosecutors shouldn’t have pursued a rape charge and should have instead chased a case for sexual battery.
“If your concern was for her, then why not prosecute for what you could do rather than what you know was way out of bounds?” Mr Freeman said.
However in Indiana, a sexual battery charge would have only covered the moment Ward first groped the college student to initiate sex when she was asleep.
Ms Finney told Buzzfeed when the first not guilty decision was read by the jury in February this year she felt angry.
“I felt like I’d wasted a year of my life because I could’ve been trying to heal, but instead I was reopening the wound over and over again,” she said.
“My therapist even called the trial a second trauma, so I guess I felt like I had done all that for no reason.”
Push to close the loophole
Ms Finney’s case has exposed the loophole in rape law and pushed US politicians to fight for a law that covers rape by fraud.
Tippecanoe County Republican representative Sally Siegrist said she did not want another case like Ms Finney’s.
“I never want another victim of rape to have their rapist go free just because of a loophole in our state statute,” she said.