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In most jurisdictions, “no means no” and continuing to have intercourse with another person after that person withdraws their initial consent constitutes the offence of rape. But that is not the law in North Carolina. Under that state’s law, once consent to sexual intercourse is given and there has been penetration, a person who continues the act after the other party withdraws that consent is not guilty of forcible intercourse or rape.

In 1979, the North Carolina Supreme Court decided the case of State of North Carolina v. Donnie Lee Way. Way was charged with rape for continuing to have sex with the complainant after she withdrew her initial consent. The trial judge instructed the jury if the woman withdrew her consent during intercourse and the intercourse continued through force, it constituted the crime of rape. Way was convicted.

The Supreme Court disagreed saying that was not the law. The court found there was no issue that there was only one act of intercourse and once penetration had occurred with consent, continuation of that one act is not rape. Rape could only occur if there was subsequent acts of intercourse the complainant did not consent to. The court ordered a new trial.

Needless to say, not everyone is happy with that law. A 19 year old woman who consented to sex with a man at a party but told him to stop after he became increasingly violent went to the police to make a complaint. She was told there was nothing they could do. In another case, a woman let her drunken estranged husband into her home and initially consented to have sex with him. But, like the 19 year old, she told him to stop after he became violent but he refused. Her husband was initially charged with rape but that charge was changed to misdemeanor assault because of the 1979 case. The woman’s lawyer said his client was victimized twice; first by her husband and then by the law.

In March, state senator Jeff Jackson introduced Senate Bill 533. The bill states after consent is given and penetration occurs, continuing the act after the other person clearly withdraws their consent constitutes the crime of vaginal intercourse by force. The continuation becomes criminal even though there has only been one act of intercourse.

Jackson called the current law “indefensible” and said he hasn’t met anyone who thinks the current law should remain on the books. The state senator also said many lawmakers and lawyers are unaware the law set out in State v. Way is still the law.

North Carolina is the only state that has this law and Jackson hopes the bill will be passed on a nonpartisan basis. If passed, it is scheduled to take effect on Dec. 1 and apply to all acts committed on or after that date.
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