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.
In 1985, Anthony Wyrick sexually assaulted two teenage girls in Charlotte. The police collected semen and other biological evidence but DNA testing was not available at that time and the crime went unsolved. Almost 30 years later, the case came to the attention of the Charlotte-Mecklenburg Police Department’s sexual assault cold case unit. Officers submitted the biological evidence for DNA testing. The results pointed to Wyrick, who lived near the scene of the crime in 1985 and who had since been convicted of an unrelated second-degree rape. Wyrick was eventually arrested, charged, and convicted. His conviction was affirmed last month in State v. Wyrick, which I how I learned of the case. Reading it got me wondering about the status of what is popularly known as the rape kit backlog.
Attention has fallen on North Carolina for a 1979 court decision on withdrawal of consent during sexual intercourse. In State v. Way, 297 N.C. 293 (1979), the state supreme court held under North Carolina’s then-existing rape statutes 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. The decision has drawn fierce criticism from the public and in legal circles. The criticism intensified after the General Assembly did not act on a bill introduced this session, Senate Bill 553, which would have permitted withdrawal of consent after intercourse begins consensually. People have asked me whether the apparent holding in Way is still the law in North Carolina. Is it true that a man would not be guilty of rape if he forcibly continued to have sexual intercourse with a woman after she withdrew consent? In my view, that may not be the law in North Carolina.
I just finished reading Jon Krakauer’s Missoula: Rape and the Justice System in a College Town. Not a day has passed since I closed the cover that I haven’t contemplated its harrowing account of the sexual assault scandal that enveloped the town of Missoula, its university (the University of Montana) and its revered football team, the Griz, from 2010 through 2012. The book is a powerful work of investigative journalism that challenged some of my beliefs about the incidence of sexual assault on campus.
In the recent court of appeals case In re J.F., ___ N.C. App. ___, ___S.E.2d ___ (Nov. 18, 2014), the defendant argued that penetration is an essential element of sexual offense and crime against nature. Following prior case law, the court held that penetration is required for crime against nature, and that in the case presented, the evidence wasn’t sufficient on that issue. Turning to the sexual offense conviction, the court noted that offense covers different types of sexual acts, specifically, cunnilingus, fellatio, analingus, anal intercourse, and the penetration, however slight, by any object into the genital or anal opening of another person’s body. Id. (citing G.S. 14-27.1(4)). In the case before it, the relevant conduct was fellatio, a “touching” act, which the court held doesn’t require penetration.
In 2008 the General Assembly enacted two new crimes, rape of a child by an adult offender under G.S. 14-27.2A, and sexual offense with a child by an adult under G.S. 14-27.4A. S.L. 2008-117. Both crimes have special sentencing rules and special provisions for lifetime satellite-based monitoring. Today’s post responds to some of the questions … Read more
One recurring question I get asked is this: If the Defendant engages in two sex acts in one continuous transaction, how many assaults have occurred? When the acts are vaginal intercourse and the charge is rape, each separate act of vaginal intercourse that constitutes rape is a separate, punishable offense. State v. Dudley, 319 N.C. … Read more