38 Year Old Law In NC Allows Men To Legally To Rape Women

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North Carolina is the one state where the law explicitly says you cannot revoke consent once it’s given. A bill that would remove this “unacceptable loophole” has little traction.

One May evening in 1977, Beverly Hester was sexually assaulted. According to the summary included in the North Carolina Supreme Court decision State v. Way, she testified that the perpetrator, Donnie Way, threatened to beat her if she didn’t have sex with him while hanging out at a friend’s apartment. When she tried to leave the bedroom, he allegedly slapped her in the face.

Hester went on to tell the court that Way penetrated her anally and forced her to perform oral sex on him. She said he began having intercourse with her—though she begged him not to because she was a virgin—but stopped when she complained of severe stomach pains. Later, at the hospital, she told her mother she was raped.

Despite her testimony, the jury appeared to be swayed by the defense’s argument that Hester initially agreed to have sex with Way. During deliberations, they returned to ask the judge “whether consent can be withdrawn.” The judge noted that it could, especially in cases where intercourse has turned violent and thus “no longer consensual.” Way was convicted of second degree rape.

The state Supreme Court, however, disagreed with the lower court’s interpretation of withdrawn consent. “If the actual penetration is accomplished with the woman’s consent, the accused is not guilty of rape, although he may be guilty of another crime because of his subsequent actions,” the High Court wrote.

As a result, for the past 38 years, women in North Carolina—like 19-year-old Aaliyah Palmer, who allegedly agreed to have sex with a man at a party but changed her mind when he got violent—have been unable to legally revoke consent after sexual intercourse begins. “It’s really stupid,” Palmer recently told the Fayetteville Observer. “If I tell you no and you kept going, that’s rape.”

On March 30, state Sen. Jeff Jackson, a Democrat, filed a bill that would change this horrific law. (He filed a similar bill with two Republican co-sponsors in 2015.) The text of SB 553 is short and to the point, reading, in part: “a person may withdraw consent to engage in vaginal intercourse in the middle of the intercourse, even if the actual penetration is accomplished with consent and even if there is only one act of vaginal intercourse.”

Currently, the bill sits in the Senate’s Rules Committee, where it is likely to be tabled. Jackson plans to refile the bill again next year. “This really shouldn’t be a controversial matter,” he says. “North Carolina is the only state in the country where no doesn’t really mean no. 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.”

Jackson says he first encountered this loophole when he worked as a criminal prosecutor, when his office was forced to dismiss a rape charge because of these circumstances. “Very few legislators are aware that this is the current state of our law,” he says.

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