Two years ago I wrote a blog post about North Carolina’s unusual stance on rape and consent. In its 1979 decision in State v. Way, 297 N.C. 293 (1979), the North Carolina Supreme Court appeared to take the position that if a woman consents to sexual intercourse and in the middle of the act changes her mind, the defendant is not guilty of rape for continuing to engage in intercourse with her. In my lengthy blog, I suggested ways to distinguish or limit the antiquated approach in Way. This post need not be nearly as long. Last week, the General Assembly enacted Senate Bill 199, which revised the elements of rape and other sexual offenses to recognize the right to revoke consent, whether or not sexual intercourse or another sexual act has begun. If signed by the Governor (the Governor has signed the bill), the law will apply to offenses committed on or after December 1, 2019.
The bill accomplishes this result by amending the definitions section for rape and other sex offenses in Article 7B of Chapter 14 of the General Statutes. New subsection (1a) of G.S. 14-27.20 creates a definition of “against the will of the other person,” a required element of proof for forcible rape as well as forcible sexual offense and sexual battery (except when the other person is mentally incapacitated, mentally disabled, or physically helpless and effectively incapable of consenting). It defines the element as either:
- Without consent of the other person.
- After consent is revoked by the other person, in a manner that would cause a reasonable person to believe consent is revoked.
It is the second clause that explicitly recognizes the right to withdraw consent. While I vowed to keep this post short, a few additional points are worth noting.
First, the statute uses an actual consent standard for initial consent and a “reasonable person” standard for revocation of consent. Thus, if a person revokes consent after initially consenting to having sex, the prosecution must prove that a reasonable person would have believed that the person had revoked consent.
Second, the bill does not eliminate the “force” requirement for forcible rape, forcible sexual offense, and sexual battery. North Carolina cases have held that a nonconsensual sexual act alone does not constitute force. To prove “force,” the prosecution must show the use or threatened use of force or some other circumstance, such as an unexpected assault on the other person. See State v. Henderson, 233 N.C. App. 538 (2014). This approach differs from a bill considered by the General Assembly in 2017 (Senate Bill 553), which if passed would have eliminated the force requirement in cases involving revocation of consent. Under that bill, a person who continued to engage in intercourse would have been guilty of “intercourse by force and against the will of the other person.”
Last, the bill contains several other provisions in cases involving sexual and other matters, including among other things new crimes involving the failure to report violent and sexual crimes against juveniles (to be discussed by my colleague Sara DePasquale in a later blog), revised restrictions on the use of the Internet by people required to register as sex offenders (in response to the U.S. Supreme Court’s decision finding North Carolina’s previous ban unconstitutional, discussed here), and a broader definition of mental incapacity in cases involving sexual assaults. I leave those topics to other posts.
Will this change lead to many more prosecutions involving revocation of consent? I can’t say. As the title of the bill indicates, however, recognizing that no means no, and stop means stop, is a way to “modernize” our state’s sexual assault laws.