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Abigail Finney thought she had sex with her boyfriend. But he wasn’t in the room.

Warning: This article deals with an account of rape/sexual assault and may be triggering for survivors of abuse.

It was only after returning to bed from the bathroom that Abigail Finney realised what had happened.

She thought she had just had sex with her boyfriend – so why was his friend in his bed, “grinning” back at her?

Finney, who shared her story with Buzzfeed News, was in her boyfriend’s dorm room at Purdue University in West Lafayette, Indiana.

She had fallen asleep with him cuddling beside her in his loft bed while three of his friends were crashed on a futon after a casual night of video games and drinking – although Finney said she stayed sober.

Later she woke up, feeling a hand from behind fondling her over her tshirt. She thought it was her boyfriend so she went along with it, which led to brief intercourse, all the while with her back to him.

Finney then needed to go to the bathroom and when she returned she realised that the man in the bed was not her boyfriend, but one of his friends.

“I remember him grinning at me. It was a freaky image,” she told Buzzfeed. “I was just kind of – I was frantic. I didn’t know what was going on.”

She assumed it was a prank and asked where her boyfriend was – his other friends, who had woken up, said they didn’t know.

Finney noticed her keys were missing so she rushed to her dorm room down the hall and found her boyfriend asleep in her bed.

He had been there for hours.

She explained what his friend had done and her boyfriend, angry and confused, stormed out to confront him.

Now alone, she processed what had happened to her. She text two friends for advice: “I was like, ‘I feel violated. This feels wrong. But I don’t know if it’s illegal’.”

After confronting his friend, Finney’s boyfriend accompanied her to the hospital and police station, and Ward was arrested that night.

The Layfette Journal & Courier reported the incident led to a rape charge against Donald Grant Ward, who was acquitted earlier this year of any wrongdoing in the February 2017 encounter.

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Finney’s case has exposed a loop hole in rape laws, as under Indiana law, what Ward did was not technically illegal – even though he admitted he knew she thought he was her boyfriend. Even though he knew she wasn’t consenting to sex with him.

Indiana has no rape by deception law – in fact, the word consent is not expressly defined in laws of more than three-quarters of US states and territories, Buzzfeed reported.

Former Indiana state legislator Sally Siegrist unsuccessfully tried to reform the state’s rape law in the wake of Finney’s case, but Finney remained undeterred.

“I don’t know if I speak for all women but I definitely, before this happened, have always thought of what I would do, and it was always just, ‘Oh, I would just report it’. Snap judgment,” she told Buzzfeed. “But it’s not that easy when it’s real life, because it’s less black-and-white.”

She said she was “pretty angry” when Ward was found not guilty by a jury.

“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.”

The Australian Institute of Family Studies’ website states that all Australian jurisdictions recognise that some kinds of fraud, deception or mistaken belief should invalidate consent.

“Fraud about the identity of the person proposing intercourse recognises that when a person consents to sexual intercourse believing they are having sexual intercourse with a particular person, but they have been deceived into having sex with a completely different person, they have not given genuine consent.”

If this post brings up any issues for you, or if you just feel like you need to speak to someone, please 1800 RESPECT (1800 737 732) – the national sexual assault, domestic and family violence counselling service. It doesn’t matter where you live, they will take your call and, if need be, refer you to a service closer to home.

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