Due to this law, women like Beverly Hester aren’t able to get justice for the crime done to them. In 1977, Hester told the court that Donnie Way “threatened to beat her if she didn’t have sex with him.” When she attempted to leave the bedroom, Way became violent.
Hester explained the sexual force Way showed on her. She begged him to stop because she was still a virgin. She even told him that she had terrible stomach pains but he didn’t. At the hospital, Hester told her mother that she had been raped.
And yet, despite her testimony, the defense’s argument was that this woman had initially agreed to have intercourse with Way. The jury turned to the judge to inquire “whether consent can be withdrawn.” Only when the judge said yes because it had turned violent was the jury swayed and Way “convicted of second-degree rape.”
The state Supreme Court has a different idea in such cases. It wrote that “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.” This is a dangerous statement that is putting women’s safety in jeopardy.
Due to this law, women in North Carolina have been losing their battles in such cases. Women like Aaliyah Palmer. A 19-year-old who allegedly said yes to sex with a man at a party but tried to refuse consent when the man turned violent.
This loophole in the only state in America is being changed, however. At least, this is what state Sen. Jeff Jackson is working on when he filed a bill on 30 March. “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.’”
The bill is waiting in the Senate’s Rules Committee. About the change, Jackson has said that “this really shouldn't be a controversial matter. 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 first learned of the loophole when, working as a criminal prosecutor, his office had to “dismiss a rape charge” because of this law. “Very few legislators are aware that this is the current state of our law. They're very surprised when I tell them. Most of my conversations have been educating our members about this plainly unacceptable loophole in our rape law. I have not had any members defend the loophole. Every legislator I've spoken to agrees we need to fix this.”
Despite there being some objections about the loophole change, Jackson is positive it will pass. “When it does, my bet is it passes unanimously. No one can seriously defend this loophole in our rape law."
Another person who is waiting to see this law being passed is Angelica Wind, the executive director of Our Voice — a crisis intervention and prevention agency for victims of sexual violence. Wind believes that “consent should be enthusiastic and continuous” and “allowing women to revoke consent would be transformative for the state of North Carolina.”
What this loophole tells women, Wind adds, is that they don’t have power over their own body. “Aside from perpetrators not being held accountable, when women cannot revoke consent, then we are telling them violence can be perpetrated against them if they consented to begin with and then had a change of heart.” It’s telling them they don’t always have the right to say no.
Moreover, Wind adds, this loophole is telling women that their rape did not happen. “What you're basically telling individuals who have been raped is that it wasn't a rape, and so they're less likely to seek out services … that would put them on a journey to healing.”
North Carolina is the only state in America where the loophole explicitly tells women they cannot say no after consent. However, other states are in a gray area about the question of consent and revocation. States like Connecticut, Illinois, Maryland, Minnesota, South Dakota and Maine.
For the sake of future victims, let’s hope this loophole will be done away with quickly. This is a dangerous flaw in the law that is stopping women from having full control over their body. No should mean no and the law should be there to back up their no, so that women can get justice.