Dave and Sue both age 21, have been dating for two years and have lived together and been sexually active with each other for over a year. Dave and Sue go to a party where Sue sees Dave talking to Sue's enemy, Mary. Sue decides to break up with Dave and starts drinking straight vodka to forget what a jerk Dave is.

After several drinks, Sue staggers up to Dave and tells him she wants to break up and then passes out. Dave thinks this is the vodka talking, takes Sue home, undresses her and puts her in their bed.

As Dave is brushing his teeth and getting ready for bed, Sue wakes up. She repeats that she wants to break up and says that Dave must sleep on the couch. Sue then falls asleep.

Dave ignores Sue and gets into the bed. They do not have intercourse.

In the morning, Sue is still mad, and moves out of their apartment.

Sue sues Dave for battery. What facts support her claim?

What defenses can Dave assert?