TAR HEEL VIEW: Legal loophole shielding rapists must be undone


For nearly four decades, a loophole allowing rapists to escape punishment has sat undisturbed in North Carolina’s lawbooks.

A state senator is trying to change that, but he’s fighting an uphill battle.

The N.C. Supreme Court ruled in the 1979 case State v. Way that a man cannot be found guilty of rape if consent is withdrawn during intercourse. Justices granted a new trial to a rape convict after finding the jury instruction on revoked consent was not supported in statute or case law.

“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,” Justice James William Copeland wrote for the court.

This interpretation exposed a fatal flaw in the state statute defining the crime of rape. Our legislature is responsible for correcting this grievous error, but for 38 years, the General Assembly has failed to act.

When Sen. Jeff Jackson, D-Mecklenburg, learned of the law’s shortcoming, he filed Senate Bill 553 to clarify that any person has the right to revoke consent during sex. The necessary, common-sense legislation was filed on March 30 and referred to the Senate Rules Committee April 3. It has not received a committee hearing, the first hurdle it must clear in order to receive a floor vote.

Women in Wake and Cumberland counties have come forward since the bill’s introduction and shared painful stories about how North Carolina’s wrongheaded rape law has victimized them. A 19-year-old told The Fayetteville Observer she agreed to have sex with a man at a party, but she told him to stop when he became violent during the act.

She reported the incident to Fayetteville police, but due to the 1979 court ruling, the man was not charged with a crime.

“Legislators are hearing more and more about women who have been raped and are being denied justice because of this crazy loophole,” Jackson told the Fayetteville newspaper. “North Carolina is the only state in U.S. where no doesn’t mean no.”

The law’s understanding of sexual assault has evolved since 1979 seemingly everywhere except North Carolina. Colleges and universities are teaching students to obtain affirmative consent from sexual partners and warning that alcohol or drug impairment can prevent a person from being able to give consent.

It would be disingenuous, however, to suggest withdrawn consent is an obscure or recent phenomenon. It served as an integral plot point for attorney and author Alan Dershowitz’s bestselling novel “The Advocate’s Devil,” in which consensual sex turns to rape when a basketball star whispers disturbing and insulting things into his victims’ ears and refuses to stop as women frantically try to fight him off.

Characters in the story and readers of the fictional work alike recognize the behavior as rape. Dershowitz’s book was published in 1994, nearly a quarter-century ago.

It’s long past time for the General Assembly to act. North Carolina should not be known as the state that shields rapists and victimizes women.

The Wilson Times

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