Whether “No” Means “No” in North Carolina

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.

Here are my reasons, discussed in more detail below. First, Way stated that a man is not guilty of rape if a woman withdraws consent after sexual intercourse begins and the man continues to have intercourse with her; the court did not specifically hold that a man would not be guilty of rape if he forcibly continued to have intercourse with her after withdrawal of consent. Second, shortly after Way was decided, new and substantially different rape and sex offense statutes took effect in North Carolina; these statutes may support a different result regardless of the exact meaning of Way. Third, Way is nearly forty years old and from another era; our courts could conclude that Way should no longer be followed.

The Way Decision

In North Carolina, rape refers to one specific sexual act: vaginal intercourse between a man and a woman, defined as penetration of the female sexual organ by the male sexual organ. For forcible rape, the intercourse must be by force and without consent. These basic principles were in effect at the time of Way and remain the law in North Carolina.

The evidence in Way was disputed. The State’s evidence showed that the victim never consented to sexual intercourse and that the defendant forced her to engage in intercourse and other sexual acts. The defendant’s evidence showed that the intercourse began consensually and that during intercourse the victim complained about stomach pains and the defendant then stopped.

After jury deliberations began, the jury asked the trial judge whether consent could be withdrawn. The judge instructed the jury that consent initially given could be withdrawn and, if the intercourse continued through use of force or threat of force, the intercourse was no longer consensual and would constitute the crime of rape. The defendant appealed his conviction of rape, arguing that the trial judge’s instruction on withdrawal was erroneous. In an unpublished opinion, the court of appeals found no error. The state supreme court reversed.

The supreme court recognized that consent can be withdrawn but stated that this concept ordinarily applies in situations in which more than one act of intercourse occurs. The court found that there was “only one act of sexual intercourse” in this case. The court stated that if penetration initially occurs with consent and the woman then changes her mind, the accused may be guilty of other crimes for continuing to engage in intercourse with her but is not guilty of rape. 297 N.C. at 296–97.

The Holding in Way May Be Limited

Where does North Carolina law currently stand after Way? The answer may depend first on how courts interpret what Way actually held. A case from another jurisdiction suggests that the decision may stand for a narrower proposition than may seem.

In State v. Robinson, 496 A.2d 1067, 1070 (Me. 1985), the Maine Supreme Court observed that the Way court misstated the trial judge’s instruction. The trial judge in Way instructed the jury that if the defendant forcibly continued to have intercourse with the victim after she withdrew her consent, the defendant would be guilty of rape. The Maine court found that the North Carolina Supreme Court rephrased the issue to leave out the element of compulsion. The Way court stated that the judge erred by instructing the jury that it could find the defendant guilty of rape if the woman consented to have intercourse and then changed her mind in the middle of intercourse. Way therefore could be read as holding only that a man is not guilty of forcible rape unless a woman withdraws consent and the man uses force or the threat of force to continue intercourse with her against her will. This more limited proposition is consistent with rape law generally, in North Carolina and elsewhere. See Amy McLellan, Comment, Post-Penetration Rape—Increasing the Penalty, 31 Santa Clara L. Rev. 779 (1991) (distinguishing cases involving force and not involving force). Way also stated that an accused is not guilty of rape if the initial penetration is with consent, but this statement is unnecessary to the issue posed and decided in Way and is arguably dicta.

Two North Carolina decisions since Way have cited Way and stated generally that consent can be withdrawn before penetration, but neither decision involved a situation in which the victim withdrew consent after penetration and neither closely analyzed the meaning of Way. See State v. Penland, 343 N.C. 634, 649 (1996); State v. Alston, 310 N.C. 399, 407 (1984). The issue therefore may remain open.

The 1980 Statutes May Have Undermined Way

Another view of Way is that the court meant what it said. A woman cannot withdraw her consent once intercourse begins with consent. Until the man withdraws, her consent is irrevocable for purposes of rape law even if the man forces her to continue having intercourse.

Way contains no further analysis or authority in support of this proposition, a failing noted by other courts in refusing to follow the decision. See, e.g., State v. Baby, 946 A.2d 463, 483–84 (Md. 2008). The only decision that has approved Way (and has since been overruled) suggests a possible rationale. In People v. Vela, 218 Cal. Rptr. 161, 165 (Cal. App. 1985), the court took the position that the principal harm of rape is penetration without consent. The court asserted:

[T]he essence of the crime of rape is the outrage to the person and feelings of the female resulting from the nonconsensual violation of her womanhood. When a female willingly consents to an act of sexual intercourse, the penetration by the male cannot constitute a violation of her womanhood nor cause outrage to her person and feelings. If she withdraws consent during the act of sexual intercourse and the male forcibly continues the act without interruption, the female may certainly feel outrage because of the force applied or because the male ignores her wishes, but the sense of outrage to her person and feelings could hardly be of the same magnitude as that resulting from an initial nonconsensual violation of her womanhood.

Other courts have found these views “archaic and outmoded.” See, e.g., McGill v. State, 18 P.3d 77, 84 (Alaska Ct. App. 2001). The North Carolina statutes in effect at the time of Way likewise reflect older attitudes about rape, making the victim’s chastity an element or determinant of punishment. Thus, the 1979 version of statutory rape of a female under age 12, in former G.S. 14-21, classified the offense as first-degree rape, for which the punishment was death, if the female was “virtuous.” Otherwise, the offense was second-degree rape, punishable by life in prison or a term of years in the discretion of the court. Similarly, the 1979 version of statutory rape of a female over 12 and under 16 years of age, in former G.S. 14-26, classified that offense as a felony if the female had “never before had sexual intercourse with any person.” This form of statutory rape did not criminalize sexual intercourse with a female over age 12 who was not a virgin.

The forcible rape provisions in former G.S. 14-21, under which the defendant in Way was charged, did not require that the woman be virtuous or a virgin, but the terminology still appears to reflect an older sensibility. Thus, it provided that a person who “ravishes and carnally knows” a female age 12 or older by force and against her will was guilty of forcible rape. This antiquated language means sexual intercourse, but it emphasizes the taking (ravishing) and “knowing” the victim’s womanhood without her consent.

Today’s statutes are different. Shortly after the decision in Way, the North Carolina General Assembly rewrote the rape statutes as part of “An Act to Clarify, Modernize and Consolidate the Law of Sex Offenses.” S.L. 1979-682 (H 800). The legislation, which took effect January 1, 1980, did not specifically address withdrawal of consent, but it eliminated value-laden language that could be construed as making penetration the principal harm of rape. Thus, the statutes eliminated the virtue and virginity aspects of statutory rape and replaced the older description of the sexual act for rape with the straightforward term “vaginal intercourse,” which remains the terminology in our statutes.

Penetration is still an element of the offense, but courts elsewhere have recognized that continued intercourse after withdrawal of consent meets the definition of intercourse. “[I]n either everyday or legal parlance any continuing presence of the male sex organ in the female organ constitutes sexual intercourse.” State v. Robinson, 496 A.2d 1067, 1069 n.2 (Me. 1985) (emphasis in original). In North Carolina and other states, the law provides that the act of intercourse is complete on penetration, however slight. See G.S. 14-27.36 (so stating). But, other state courts have recognized that the reference to penetration establishes the minimum evidence necessary to prove intercourse. It does not mean that only the initial penetration constitutes intercourse. See, e.g., State v. Siering, 644 A.2d 958, 962 (Conn. App. 1994).

The 1980 changes also recognized that other sexual assaults, such as forcible oral sex acts, are comparable in seriousness to forcible sexual intercourse even though they do not require penetration. Reflecting evolving views about the harm of sexual assaults, these provisions impose the same punishment as for forcible rape. See, e.g., G.S. 14-27.26, G.S. 14-27.27 (current statutes for forcible sexual offense). When Way was decided, these other sexual acts constituted the offense of crime against nature under G.S. 14-177, a felony punishable in the discretion of the court.

By eliminating the emphasis on penetration, the 1980 changes may have undermined the basis for the Way decision. As a result, a court could decide that continued, forcible intercourse with a person, after withdrawal of consent, violates the current rape statutes.

Way May No Longer Be Followed by Our Courts

No other court now takes the position suggested in Way. In In re John Z., 128 Cal. Rptr. 2d 783 (Cal. 2003), the California Supreme Court overruled Vela, quoted above. In State v. Baby, 946 A.2d 463, 475 (Md. 2008), the Maryland Supreme Court rejected as dicta language from one of its earlier decisions suggesting that a woman cannot withdraw consent during an act of intercourse that begins consensually. Every other court that has considered the issue has rejected the concept. See State v. Bunyard, 133 P.3d 14 (Kan. 2006), overruled in part on other grounds, State v. Flynn, 329 P.3d 429 (Kan. 2014); McGill v. State, 18 P.3d 77 (Ct. App. Alaska 2001); State v. Siering, 644 A.2d 958 (Conn. App. 1994); State v. Jones, 521 N.W.2d 662 (S.D. 1994); Davenport v. Vaughn, 2005 WL 856912 (E.D. Pa. 2005), aff’d on other grounds, 215 Fed. App’x 175 (3d Cir. 2007).

Our courts could reach the same conclusion. See also Erin G. Palmer, Comment, Antiquated Notions of Womanhood and the Myth of the Unstoppable Male: Why Post-Penetration Rape Should Be a Crime in North Carolina, 82 N.C. L. Rev. 1258, 1267 (2004) (observing that “the harm of rape is about more than penetration–it is about the loss of autonomy, dignity, and control that arises from being a target of intimate violence, power, and rage”).

The Way Forward

For these reasons, I believe the law in North Carolina on withdrawal of consent is unsettled and, if presented with the issue, our courts could find that Way is not controlling. The General Assembly also could clarify the elements of rape through an explicit statutory change. Senate Bill 553 would recognize that a person may withdraw consent during intercourse that begins consensually. In its current form, the bill also may expand the law because it provides that a defendant who continues to engage in intercourse after withdrawal of consent is deemed to have acted by force and against the will of the other person. Whether lack of consent alone would satisfy the force requirement for rape is a matter for further consideration by the General Assembly should it take up the issue.