Thanks to a 1979 state Supreme Court case ruling, North Carolina is the only state where women can't withdraw consent during intercourse if it's already underway and they've given previous consent. The issue is under renewed scrutiny after two North Carolina women in the past two months shared accounts of withdrawing consent during sex and then discovering their alleged attackers wouldn't be charged with sexual assault. Now, Democratic state senator Jeff Jackson is hoping to change this with a new law, Senate Bill 553.
As The Fayetteville Observer reports, a woman in Fayetteville, North Carolina says she consented to a sexual encounter with a man but told him to stop when he turned violent during intercourse; he allegedly continued having intercourse despite her objections. When the survivor looked further into her case, she found that what happened to her wasn't defined as "rape" because of a 1979 court ruling by the North Carolina Supreme Court in State v. Way. In the case, the court ruled that if a person consents to a sexual act and withdraws consent during that same sexual act, it's not legally considered rape.
“It’s really stupid,” the survivor said to The Fayetteville Observer of the law. “If I tell you 'no' and you kept going, that’s rape.”
In May, a woman from Raleigh shared her story with local news after law enforcement officials reduced rape charges against her husband to assault because of the 1979 ruling. Another case made local news in 2010 after the lawyer for the defendant in a sexual assault case used State v. Way to argue that a teenager had given consent before a sexual encounter with his client — meaning his client couldn't have raped the teen in the eyes of the law, even if she had withdrawn consent later.
Senator Jackson is looking to tackle this issue with his new bill, which clearly states that if a person withdraws consent at any point during vaginal intercourse, that person is said to have committed an "act of vaginal intercourse by force and against the will of the other person." The bill also spells out that a person can withdraw consent even if penetration has taken place with consent and even if it is during the same sexual act that a person previously consented to.
Jackson says he knows first-hand how damaging the law can be from his time as a prosecutor, when he had to dismiss a rape charge because of the State v. Way ruling. "North Carolina is the only state in the country where no doesn’t really mean no," he tells Allure in an email. "Right now, if a woman tells a man to stop having sex he is under no legal obligation to do so, as long as she initially consented. If sex turns violent, the woman has no right to tell the man he must stop." He says that he has yet to talk to a senator who opposes his bill, though he has received some backlash from local conservative media. Most of his work, he adds, has been educating fellow state congresspeople that this law even exists in the first place.
He tried to push a similar bill through the state Senate in 2015, but it "died" in committee and wasn't voted on. Now, this second bill is facing similar hurdles and is stalled in the Senate’s Rules Committee.
Regardless, Jackson is also ready to re-file the bill next year. "I believe this bill will inevitably pass, and when it does, my bet is it passes unanimously," he explains. "No one can seriously defend this loophole in our rape law. We have a clear ethical obligation to fix this obvious defect in our rape law."
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