I cheated without knowing

You're absolutely right, it is. He didn't ask for consent before kissing you and getting into bed with you. That is textbook assault.

remember him whispering, asking if I was ok to have sex/I was able to consent and I said yes

https://www.cps.gov.uk/legal-guidance/rape-and-sexual-offences-chapter-3-consent

Sexual Offences Act 1956
The Sexual offences Act 1956 contains no statutory definition of 'consent'. Juries must be told that the word should be given its ordinary meaning, and that there is a difference between 'consent' and 'submission'.

Lack of consent may be demonstrated by:

The complainant's assertion of force or threats;
Evidence that by reason of drink, drugs, sleep, age or mental disability the complainant was unaware of what was occurring and/ or incapable of giving valid consent; or
Evidence that the complainant was deceived as to the identity of the person with whom (s)he had intercourse.
A boy or girl under the age of 16 cannot consent in law, (Archbold 2004, 20-152).

Consent should be carefully considered when deciding not only what offence to charge but also whether it is in the public interest to prosecute. Sometimes consent is given, or appears to be given, but the law does not treat it as effective consent.

The law does not allow a person's consent to sexual activity to have effect in the following situations:

where the person giving consent did not understand what was happening and so could not give informed consent, for example in the case of a child or someone suffering from a severe mental disability;
where the person giving consent was under the relevant age of consent.
These two situations are different. In the first, the apparent consent is not treated as real consent because the person consenting did not understand enough to give real consent. This is a question of fact. In the second, consent is real as a matter of fact but the law does not allow it to count.

Where the victim has consented in fact but not in law alternative offences may be appropriate. Examples include incest or unlawful sexual intercourse (in the case of a female victim) or, where consensual intercourse with a male under the age of consent, the offence of buggery.


Sexual Offences Act 2003
The Act sets out the offences requiring the prosecution to prove absence of consent at sections 1-4. They are:

rape;
assault by penetration;
sexual assault; and
causing a person to engage in sexual activity.
In relation to these offences a person (A) is guilty of an offence if she/he:

acts intentionally,
(B) does not consent to the act, and
(A) does not reasonably believe that (B) consents.

Statutory definition of consent
Section 74 defines consent as 'if he agrees by choice, and has the freedom and capacity to make that choice'. Prosecutors should consider this in two stages. They are:

Whether a complainant had the capacity (i.e. the age and understanding) to make a choice about whether or not to take part in the sexual activity at the time in question.
Whether he or she was in a position to make that choice freely, and was not constrained in any way. Assuming that the complainant had both the freedom and capacity to consent, the crucial question is whether the complainant agrees to the activity by choice.
The question of capacity to consent is particularly relevant when a complainant is intoxicated by alcohol or affected by drugs.

In R v Bree [2007] EWCA 256, the Court of Appeal explored the issue of capacity and consent, stating that, if, through drink, or for any other reason, a complainant had temporarily lost her capacity to choose whether to have sexual intercourse, she was not consenting, and subject to the defendant's state of mind, if intercourse took place, that would be rape. However, where a complainant had voluntarily consumed substantial quantities of alcohol, but nevertheless remained capable of choosing whether to have intercourse, and agreed to do so, that would not be rape. Further, they identified that capacity to consent may evaporate well before a complainant becomes unconscious. Whether this is so or not, however, depends on the facts of the case.

In cases similar to Bree, prosecutors should carefully consider whether the complainant has the capacity to consent, and ensure that the instructed advocate presents the Crown's case on this basis and, if necessary, reminds the trial judge of the need to assist the jury with the meaning of capacity.

Prosecutors and investigators should consider whether supporting evidence is available to demonstrate that the complainant was so intoxicated that he/she had lost their capacity to consent. For example, evidence from friends, taxi drivers and forensic physicians describing the complainant's intoxicated state may support the prosecution case. In addition, it may be possible to obtain expert evidence in respect of the effects of alcohol/drugs and the effects if they are taken together. Consideration should be given to obtaining an expert's back calculation or the opinion of an expert in human pharmacology in relation to the complainant's level of alcohol/ drugs at the time of the incident.

Consider yourself educated. You're welcome.

what?

Hard to know how this is rape. The guy sought consent and poster says she clearly remembers giving it. The mistaken identitiy is her fault because she failed to check properly.

It does. She was asleep and this random guy came into her bed and started kissing her neck. Anyway being deceived about who they were having the sex with is also sexual assault

Although I don’t think we should be arguing about this anymore. I think OP needs time to process this and so I think this thread should probably be closed and we should not be discussing this any further r

This story is too far fetched for me to believe.

I think the OP cheated and is trying to excuse her behavior

Sorry if i'm wrong but I just wouldn't believe you accidentally slept with another guy if i was the bf that got cheated on......

she thought the person she was having sex with was her bf

We covered this in criminal law and it’s covered by rape laws, sex by deception when you think it’s one person and so give consent but it is not the person you think or is.
It would be hard to convict criminally as you’d have to prove the man knew that she thought it was someone else. But none the less, it’s not cheating, it’s sexual assault (even if not up to criminal standards).
You can still speak to a counsellor to discuss this and work through your feelings (and you don’t need to feel “a victim” about it, you can feel it was just a stupid mistake all round if you want)

I've worked on a lot of similar cases and at the very least you would get a sexual assault conviction (as he started his assault while she was sleeping) and possibly a second rape charge. As with almost all such cases, it depends on the jury (if he pleads not guilty) and one person's word against another's, but she has a very strong and convincing case here. There is enough here for the CPS to bring one and possibly two charges. Remember, the Stanford rapist was convicted on the basis of the very powerful victim impact statement. It's very rare for anyone else to be present in these offences. A statement can be enough for burden of proof. The fact her bf was at the same party, she was sleeping and she thought her attacker was someone else are further evidence.

If you are the perpetrator in this offence, I hope you are reading this and sh**ting your pants. You should be very afraid. And anyone else here who thinks it's okay to get into bed with a sleeping woman and do the same, you are in the same league as the likes of Fred West and Harvey Weinstein.

This didn't happen such an obvious troll

PRSOM

What next? It’s her fault it happened? Stop hiding behind anonymous. This obviously isn’t a troll

I had to look that up! Thank you! (I think?!)