Rape and consent laws in North Carolina may be getting a much needed makeover this legislative session. Without much fanfare and right before the deadline, Senate Bill 505, whose short title is “Revoke Consent for Intercourse,” was filed.
This bipartisan bill, sponsored by Senator Jeff Jackson (D), Senator Joyce Krawiec (R), and Senator Shirley Randleman (R) would serve as a corrective for an over thirty-five year-old legal precedent in our state that does not allow for consent for vaginal intercourse to be withdrawn once it is given. Let me repeat that. If you’re about to have sex and you give consent, you cannot legally be raped — even if you say “no” during or after sex.
The 1979 ruling by the North Carolina Supreme Court in State v. Way, which states that if “the actual penetration is accomplished with the woman’s consent, the accused is not guilty of rape” has been cited in subsequent rape cases in multiple states.
In Maryland in 2006, State v. Way was used to overturn a conviction based on initial consent that was then withdrawn. However, in 2008, the Maryland Court of Appeals ruled that a “woman may withdraw consent for vaginal intercourse after penetration has occurred,” nullifying the decision of the lower courts.
In North Carolina, however, State v. Way continues to be cited in court cases, most recently in 2010 in a case that involved the dismissal of charges against a high school football player in Charlotte.
Senate Bill 505 allows for the withdrawal of consent to vaginal intercourse at any time, including after penetration has occurred. If a defendant continues vaginal intercourse after the withdrawal of consent, the act is considered to be one of “force and against the will of the other person,” which is the definition of rape in North Carolina. The bill further attests that a person “may withdraw consent… even if there is only one act of vaginal intercourse.”
Even though it is the least significant sounding language in the passage, the words “even if there is only one act” are the real fire-power in this bill. These words are meant to directly counter the current definition of consent in North Carolina which, while stating that in the cases where there is only one act of sexual intercourse, “that consent may be withdrawn only prior to penetration.” It was this part of the law that enabled the 1979 State v Way decision in the first place.
What is missing from this bill, however, is the use of the term rape. Why? Because North Carolina law makes a distinction between first and second degree rape. While both define rape in terms of forcing a person against their will to engage in vaginal intercourse, first degree rape adds the additional requirements of the use of a deadly weapon, the infliction of serious personal injury, or the aiding and abetting by multiple people.
Senator Jackson highlights the need for this bill, stating “North Carolina is the only state in the country in which a woman cannot revoke consent.” And while it seems as though North Carolina may be behind the times regarding antiquated consent laws, they would be the tenth state to have the right to withdraw consent defined, beginning with Illinois in 2003. This is because revocation of consent law can be criminalized by statute (what this bill proposes to do) or by case law, as has been done in Maryland and Maine. According to Sarah Parker, “Only North Carolina maintains that forcibly continuing intercourse after withdrawal of consent is not rape.”
Sound confusing? It absolutely is. Dipping a toe into the tempestuous waters of consent law on the state level is a disconcerting experience. Seeing this bill put into law, however, will go a long way towards removing a very dangerous legal precedent in North Carolina.
So where is the bill now? In committee. We will have to wait and see if it gets any further than that.
Melissa Geil is a freelance writer and English teacher. Although originally from New York, she moved to North Carolina the first time for college (go Tar Heels), and now she is back to stay. She enjoys reading, hiking, and gallivanting around the triangle with her family.