07:04, June 24 111 0 theguardian.com

2017-06-24 07:04:02
'No doesn't really mean no': North Carolina law means women can't revoke consent for sex

One Monday in January, Aaliyah Palmer, 19, spent several hours telling law enforcement in Fayetteville, North Carolina, that she had been raped.

Things started out OK, she said, in a consensual encounter in a bathroom. But when the man having sex with her began tearing out her hair, she demanded he stop; he didn’t.

It was here a detective interrupted Palmer’s account with a question. At any time after she said no, did her attacker stop having sex with her, then penetrate her once again?

Yes, Palmer said.

“OK,” the detective replied, according to Palmer. “That’s important.”

It was important because in North Carolina, a person cannot withdraw consent for sex once intercourse is taking place. Because of a 1979 state supreme court ruling that has never been overturned, continuing to have sex with someone who consented then backed out isn’t considered to be rape.

“The whole thing is ridiculous,” Palmer told the Guardian. “It’s crazy.”

The North Carolina law is an example of how the US legal system has not always kept pace with evolving ideas about rape, sex and consent. Just last year, an Oklahoma court ruled that the state’s forcible sodomy statute did not criminalize oral sex with a victim who is completely unconscious. The toughest charge available to prosecutors was unwanted touching.

But the North Carolina law appears to be unique. And it has shocked even those who are used to dealing with such legalistic vagaries.

“It’s absurd,” said John Wilkinson, a former prosecutor and an adviser to AEquitas, a group which helps law enforcement pursue cases of sexual violence. “I don’t think you could find anyone today to agree with this notion that you cannot withdraw consent. People have the right to control their own bodies. If sex is painful, or for whatever reason, they have the right to change their mind.”

The ruling has devastated victims and frustrated prosecutors in North Carolina for years. State senator Jeff Jackson, who has introduced legislation to amend the law, encountered a similar case when he was a criminal prosecutor. His office was ultimately forced to dismiss the rape charge.

“North Carolina is the only state in the country where no doesn’t really mean no,” he said in a statement. “We have a clear ethical obligation to fix this obvious defect in our rape law.”

This May, another North Carolina woman, Amy Guy, revealed that the law had prevented prosecutors from charging her husband with rape, after a violent attack in which she repeatedly resisted.

Guy was estranged from her husband when he showed up unannounced at her new home and demanded she sleep with him. Her husband had been violent in the past, Guy said, so she consented. When he began to hurt her, she told him to stop. He did not.

A rape conviction could have carried a prison sentence of five and a half to nearly seven years, according to Guy’s attorney. But once somebody in the prosecutor’s office recalled the 1979 ruling, law enforcement allowed Guy’s husband to plead guilty to a lesser charge, of misdemeanor assault, for being violent during their encounter.

“I was devastated,” Guy said in an interview. “That did not make any sense. I was taught that no means no and it’s not really true.”

He was given a sentence of 10 months and is due to be released in November.

‘No one can seriously defend this loophole’

The 1979 ruling, State v Way, arose after a man named Donnie Leon Way appealed his recent conviction for second-degree rape. Way was convicted of using extreme violence to force an acquaintance to submit to rape and oral sex. Wilkinson, the AEquitas adviser, said he was confounded as to why the state supreme court even introduced the idea of withdrawing consent.

“No one can seriously defend this loophole,” Jackson said in his statement. His bill would amend state law to read, 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 …

“A defendant who continues the act of vaginal intercourse after consent is withdrawn is deemed to have committed the act of vaginal intercourse by force and against the will of the other person.”

The proposal is stuck in committee with no sign that lawmakers will try to pass it before the current legislative session ends.

Palmer’s case, however, has put the decades-old ruling back in the spotlight.

The person she says attacked her has not been arrested or charged. Palmer wonders if that is because it would be difficult to prove he penetrated her multiple times, after she told him to stop. In his defense, she reasons, he could say she consented at the beginning of intercourse and they only had sex once.

A Fayetteville police spokesperson did not respond to a message asking if the 1979 ruling had any influence on law enforcement’s decision not to bring rape charges. Police have told Palmer and the Fayetteville Observer, which first publicized her case, that the evidence they collected wasn’t enough to substantiate a rape.

Palmer agreed to be identified by name to create awareness of her case.

On a Saturday in January, according to Palmer and court documents, she and a friend went to Fort Bragg to connect with men they met on Tinder Social. After Palmer and her friend split up, Palmer went to a party in an apartment complex where she met the man she identifies as her assailant.

In an emptier apartment, she recalled, he pulled her into a bathroom to have sex. But when he began to grab her hair so hard that she could feel it ripping out, she told him he was hurting her and he had to stop. He told her to be quiet and relax, Palmer said. He didn’t stop.

Palmer said she repeated her demand several more times, but he never relented. Fighting back seemed dangerous: “Army guys are trained in physical combat,” she said.

During the ordeal, she said, she saw at least one camera phone that had been slipped under the bathroom door, apparently to make a recording. Four soldiers stationed at Fort Bragg were later charged with creating or possessing video recordings of the incident.

The following Monday, Palmer submitted to a rape kit and gave police the clothes she had worn that night.

But Fayetteville police did not charge the man Palmer says raped her. Palmer believes they waited too long to collect vital evidence. Between the time she reported a crime and the time investigators entered the apartment where she says the attack took place, she said, a week elapsed.

Since then, Palmer has become too depressed and anxious to go to class. Videos of her encounter circulated on Snapchat, and she is tortured by the thought that classmates might have seen them.

This spring, she withdrew from North Carolina State University, and she has lost at least one of her two scholarships because she is no longer a full-time student. She has also lost friendships.

“It was really heartbreaking for me,” she said. “Everyone just believes that women are lying about rape … I’m going public about this to say, my word should be enough to be believed.”