The 1979 North Carolina Supreme Court ruling in State v. Way declared that women cannot legally revoke consent during a sexual encounter.
This ruling came to public attention earlier this year when state senator Jeff Jackson (D-Mecklenburg) sponsored legislation to amend state law. Jackson’s bill would make it so that “a person who continues to engage in intercourse after consent is withdrawn is deemed to have committed the act of intercourse by force and against the will of the other person.” The 1979 decision has drawn fierce criticism from activists and scholars and sparked a renewed debate among legal professionals about whether or not the decision made in 1979 still holds sway in North Carolina.
Host Frank Stasio discusses the 1979 case and its implications for individuals throughout the state. He talks with Amy Guy, a woman in Wake County, who was not able to press charges for rape against her estranged husband because of the State v. Way decision. He is also joined by Carissa Hessick, professor of law at UNC-Chapel Hill, and Melanie Shekita, assistant district attorney in Wake County.
Amy Guy on when she found out about NC’s rape law:
I filed the charges, and the detective did all of his, umm, I guess, investigation … My estranged husband was arrested on January the 12th … The DA brought me in [and] explained to me that once you have consented to sex you cannot then change your mind in the state of North Carolina … All my life I had been raised that ‘no means no,’ but apparently that’s not the case in North Carolina … I was appalled … You know in your mind you’ve been raped, and it was appalling to know that North Carolina doesn’t think so, or that for some reason whoever made up this law decided that’s not the case ... It was devastating.
Guy on the charges against her estranged husband:
The best they could do was two counts of assault due to the violence of the act, because he did slap me and do things like that while we were having sex. So they said that they could do two counts of assault, and basically that’s what he pled to.
Guy on why she decided to come forward with her story and the response:
When I found out about it from the ADA I started to do some research to find out why … I didn’t want anyone else to have to go through what I went through … I’ve gotten good and bad feedback ... You have some people who think that ...You shouldn't say no to your husband no matter if he's your ex or not … I’ve had probably about 10 percent of those … But 85 to 90 percent of people agree with what I'm saying – agree that this should not be a law. And it’s not a law in any other state, so I’m getting a pretty good reaction from most sane people.
Carissa Hessick on the story behind the State v. Way decision:
It’s important to remember that when we talk about what the law is in a particular state, the answer to that question depends not only on the laws that are passed by the legislature … But also how those statues have been interpreted by the courts. So here what we have is a law that was passed by the legislature that didn’t say anything about withdrawing consent after it had initially been given. And the state supreme court was asked to decide this question, and they did in 1979 … What the case did was it said that in cases involving rape in North Carolina, if you initially have consent, the fact that consent was later withdrawn doesn’t turn what happened into a rape … And I’ll add … The Supreme Court in the Way case said all of this without referencing the specific language that the state legislature had adopted. So, even though there have been changes to that law over the years, I think the best way to understand the legal landscape right now is that unless the North Carolina legislature acts, this rule continues to be the law in this state.
Melanie Shekita on her first encounter with this law:
December will be almost 19 years that I’ve been at the DA’s office. I was in trial in 2009 … And was in the middle of a rape trial where the victim never claimed that it began consensually, but the defense’s argument was … Even if at the end it wasn’t consensual it began consensually. And so the judge looked at the defense attorney and looked at me. And I said ‘well, your honor, no means no, that’s the law of the land, and it’s what we teach young children, and I’d be happy to get you case law on that’ … I went to my computer, and the defense attorney went to his computer, and we both came back with the Way case. The judge, the defense attorney and myself, we were all shocked that this was actually the law … It goes against common sense. It goes against everything we’ve been taught. And so, the defense attorney argued to the jury this is the law of the land, and they found him not guilty. And it was devastating for this victim. It’s not something you learn in law school. It’s not something that’s widely broadcast. It’s unfortunate as a prosecutor.
Shekita on the challenges of sexual assault cases:
These cases are difficult to prosecute for a number of reasons. They evolve in secrecy. You know they’re not in public places as a general rule. They’re often domestic relationships … There may be substances that are consumed during the course of the events … but this just adds one more hurdle … We’re teaching people about the way the law has been interpreted, and it’s, I think, a very unfortunate aspect of our law.
Hessick on the current bill in the NC Senate Rules Committee:
I believe that there are some problems with the language in this bill. I admire Senator Jackson for pursuing this … I believe that there are many ways to improve the bill that he has introduced. In some ways the bill goes too far, and in other ways it doesn’t go far enough. I think that it goes too far in that it says that the defendant doesn’t have to have known and understood that the victim was withdrawing consent … The way this law is written it would apply only to second-degree rape. It wouldn’t apply to other sex crimes, like forcible sexual offenses, and given that those laws are written the same way, it’s a fix that would only work for some sex crimes and not for others.