In North Carolina, a person’s initial consent to sexual activity can later prevent them from seeking justice if things turn ugly or violent — even if they asked loudly and clearly, mid-encounter, for the other person to stop.
For several years, legislators have declined to close this loophole in state sexual assault laws, but advocates believe that 2019 could at last be the year that no means no (or something closer to it) in North Carolina.
This spring, state senator Jeff Jackson (D-Mecklenburg) re-introduced a bill aiming to clarify North Carolina assault statutes such that consent may be legally revoked after a sexual encounter has begun. After three previous submissions, Sen. Jackson and co-sponsor Sen. Danny Britt (R-Columbus) are hopeful that the bill will finally receive enough bipartisan support in the coming weeks to become law.
Unlike some arcane state laws, this legal loophole has had a substantial and devastating effect for generations of assault survivors, according to victims’ advocates. In the past few years alone, numerous college- and high school-aged women have reported assaults under similar circumstances, only to find such charges dismissed according to the state supreme court’s decision in the 1979 case of State v. Way.
According to Skye David, staff attorney for the North Carolina Coalition Against Sexual Assault, hers is the only state in the nation where consent cannot be legally revoked after sex has begun — and the legal hurdles for survivors don’t end there.
“This is yet another barrier to reporting sexual assault and choosing to participate in the criminal justice system. Unfortunately, our system isn’t set up to protect survivors; it’s set up to benefit perpetrators,” she commented by email. “Because of the widespread knowledge about this issue, survivors aren’t reporting their rapes, or when they are, they realize that the system that is supposed to help them will fail to do so.”
“Being the only state in the nation to hold out on an issue would be noble if the issue were important,” David wrote. Instead, North Carolina is still operating under “archaic” definitions whereby sex that begins consensually but continues by force is not considered a crime.
“Prosecutors can’t take these cases to trial on this issue alone, and are dismissing cases of withdrawal of consent after initial consent was given,” David continued. “I travel the state and talk to survivors, especially on college campuses, who know about this archaic law, and have met those that have had their cases dismissed. Many other states have considered similar fact patterns, and have dismissed State v. Way as not persuasive law.”
Going forward, David hopes that North Carolina legislators will pass the proposed changes but also take some crucial steps to address other areas of the state’s assault statutes. “Aside from Sen. Jackson introducing the [consent] bill year after year, the North Carolina House is considering a bill, championed by Representative Chaz Beasley (D-Mecklenberg), that would modernize the current sexual assault laws and close the incapacitation loophole that exists in the state,” she explained.
David said that local advocates and assault survivors are also calling for improved protective orders for victims of sexual assault, who often struggle to gain the same protections that are given to victims of domestic violence.
By phone, Sen. Jackson said he first became aware of the consent-revocation issue while working as a prosecutor in Gaston County. “One day, another prosecutor came down from the courtroom on a break during the middle of a rape trial; there was evidence that the victim had revoked her consent, and the judge said he thought it constituted a defense, and that he’d have to dismiss the case if her consent was revoked.”
Jackson recalled, “They took a court recess to research this. We thought, of course it’s not a defense: let’s look this up and move on with the trial. And sure enough, we found State v. Way; the judge had correctly remembered state law.”
One of the “most flagrant” legal applications that Jackson remembered from his time as DA involved a judge dismissing a case and simply writing “State v. Way” on the back of the official form by way of explanation; a later, similar dismissal cited that judge’s case.
North Carolina lawmakers must pass the proposed consent bill in at least one chamber by May 9 or the bill will become ineligible to be voted on for the rest of the legislative session.
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