It's difficult to testify what happened in a time period that you don't remember. The accuser claims to not remember the time period when intercourse was initiated and several hours of activity before that. She concludes that because she doesn't remember that she didn't consent or if she did consent that she was too incapacitated by alcohol or drugs to knowingly consent. According to NE law it is not rape if she consented and the accsued did not know that she was too incapacitaed by alcohol or drugs to conciously consent and if he could not have reasonable known this. If is up to the jury to decide if they believe beyond any reasonable doubt that consent was given or if the accuser was incpacitated to the point that she could not conciously consent and the accused should have reasonably known this. NE law prohibits witnesses from testifying to conclusion that the jury is charged with making. Therefore the judge was legally correct in the decision that he made.

The accused can testify that the only concious memories she has begin in the middle of intercouse that she has no memory of consenting to. She can testify that she had several drinks the previous night and remembers nothing form the time she left the bar until she awoke naked and in the middle of intercouse. The jury then has to take this information along with any other testimony and conclude whether this meets the legal charges of Sexual Assault (under NE law rape is legally covered under a section for all Sexual Assault crimes.)