Amid a rash of near-total abortion bans in various American states in May 2019, a screenshot of two tweets regarding sexual consent laws in North Carolina caused further confusion on social media.
As of May 22 2019, one of the two tweets was deleted, but one was still live:
In the screenshot, both the deleted tweet and its live response were visible:
At the top, the original tweet read:
How they gonna change the criteria of consent[?]
A photograph of a television screen displaying what appeared to be a news graphic read:
GETTING AWAY WITH RAPE?
NORTH CAROLINA SEX ASSAULT LAWS UNDER SCRUTINY
- Once sex act has begun, you cannot withdraw consent
- State lawmakers considering bill that would change criteria for consent
RAPISTS PROTECTED BY LOOPHOLE?
NC LAW: CONSENT CANNOT BE WITHDRAWN ONCE SEX STARTS
[… lawmakers] considering a bill that would change criteria for consent
Based on the graphic, readers inferred:
- Laws in North Carolina then-currently allowed for prosecution on charges of sexual assault if consent for a sex act was withdrawn after sex had already started; and
- Lawmakers in North Carolina were then-currently considering a revision to such laws to nullify the ability to prosecute sexual assault cases wherein the victim withdrew his or her consent after a sex act had started.
However, some telling portions of the graphic included text questioning if “rapists” were “protected” by a loophole, and another suggesting that (existing) North Carolina laws held that “consent cannot be withdrawn once sex starts.”
Commenters on the one of two tweets that had not been deleted pointed out that the graphic could be read another way:
According to a 2017 Fayetteville Observer article, North Carolina’s atypical handling of rape and sexual consent comes from case law that was established in 1979:
In 1979, the North Carolina Supreme Court, in State v. Way, ruled that women cannot revoke consent after sexual intercourse begins.
Jeff Jackson, a Democratic state senator who represents Mecklenburg County, is working to get the law changed. He said many other women have approached him privately about cases in which they withdrew consent for sex, but the law would not permit the men to be charged.
“Legislators are hearing more and more about women who have been raped and are being denied justice because of this crazy loophole,” Jackson said. “North Carolina is the only state in U.S. where no doesn’t mean no.”
Jackson is the sponsor of Senate Bill 553, which would criminalize the failure to stop intercourse when a woman who had originally consented changed her mind.
In March 2019, the same news organization reported that the 2017 efforts did not result in a change to the law:
Rep. Chaz Beasley and Sen. Jeff Jackson, Democrats from Mecklenburg County, proposed a bill in 2017 to criminalize continued sex after revocation of consent. The General Assembly never acted on the measure.
The same article noted that North Carolina’s handling of rape cases was heavily influenced by that anomalous “loophole”:
This problem [of differing accounts between the accuser and accused] exists nationwide, but it is heightened in North Carolina because of a 40-year-old legal precedent that says a person cannot revoke consent after the act begins. Continuing to have sex after being asked to stop does not constitute a crime.
North Carolina is the only state in the nation where this is true, said Skye David, staff attorney for the N.C. Coalition Against Sexual Assault.
Senate Bill 563 would change that. The proposal, which was filed [in April 2019], would amend state law to say that any person who consents to a sexual act can withdraw consent at any time during the act. The bill would mean any person who continues with the sex will be considered committing “sexual act by force.”
Democratic State Senator Jeff Jackson is one of the bill’s sponsors. He said current state laws make it harder to prosecute sex assault cases.
“Law enforcement officers have declined to take out charges because of this law. Fixing this has been on my to-do list since joining the state senate,” Jackson said.
On May 9 2019, The News & Observer reported that Jackson’s effort was unsuccessful:
A bill that would make it illegal to continue to have sex with someone who told the other person to stop has died in a state Senate committee.
North Carolina may remain the only state in the country where someone cannot be charged with rape for continuing to have sex with a partner who told them to stop. It stems from a 40-year-old legal precedent.
Despite the demise of the Senate measure, it remains possible for a similar provision to be added to another piece of legislation. A state representative who has sponsored a separate bill reversing other precedents affecting sexual assaults told Carolina Public Press [in May 2019] that he would not object to the addition of such language to his bill, which passed the House without opposition.
As of May 2019, efforts to change the consent provision in North Carolina law remained unfruitful. Nevertheless, the circulating screenshot about the law appeared to involve a sort of reverse reading of the situation. In 1979, case law established in the state that consent for sex could not be withdrawn with respect to rape prosecution. Lawmakers sought not to enact such a provision, but to overturn it.