North Carolina’s Loophole in Defining Consent

Source: Davidson College Three-Year Summary of Sexual Misconduct Reports

By Savanna Vest ‘22 and Betsy Sugar ‘21

Staff Writers

In North Carolina, “no” does not always legally mean no. Through the 1979 court ruling in State v. Way, North Carolina’s Supreme Court explicitly ruled that once a woman gives consent, it is valid for the rest of the act, and if she withdraws consent, it does not have to be considered by the other participating party.

The law emerged from a 1979 second degree rape trial, in which the judge said that consent is reversible; the jury disagreed, and a loophole was thus legally created. The final verdict states that “If the actual penetration is accomplished with the woman’s consent, the accused is not guilty of rape” (State v. Way). State legislators have since interpreted the law to mean that once a woman consents to penetration, the initial consent holds over for the entire act, even if she changes her mind.

Last summer, two women’s legal proceedings and encounters with this law garnered media attention. According to the individual women, each had given then withdrawn consent, and their respective partners ignored the request to stop. Yet, since the alleged incidents occurred within one act of penetration, police told the women there would be no way to prosecute for rape. 

That same month, Senator Jeff Jackson (D) proposed Senate Bill (SB) 553. SB 553 was the second iteration of a bill to overturn State v. Way. Jackson proposed a bill that stated: “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.” But, the Republican majority Senate never allowed Jackson’s bill to be heard on the floor.

In a 2017 interview with The Fayetteville Observer, Senate leader Phil Berger (R) claimed he did not feel that changing laws should be rushed. The law in question is well over 30 years old, and there has been no complaint until now (“NC unlikely to consider rape consent bill this year”). After the failure of Jackson’s bill, media coverage dissipated. Even though the media has forgotten about this issue, lawmakers have not. This past July, Jackson introduced a third version of the bill to close the loophole. But, as with the two preceding renditions of this bill, the Republican majority never allowed it to be heard on the floor. The Democratic senator plans to continue to propose bills until he can close the loophole. 

But where does sexual misconduct on Davidson’s campus stand in relation to this law? Davidson College’s definition of consent differs from that under which the North Carolina courts operate. The Davidson College Sexual Misconduct Policy defines consent as “the affirmative, unambiguous, and voluntary agreement to engage in a specific sexual activity during a sexual encounter.” The school policy furthermore states consent is “mutual and ongoing” expanding upon that idea by clarifying if any participant feels that there is “confusion or ambiguity […] on the issue of consent, it is incumbent upon each individual involved in the activity to stop and clarify the other’s willingness to continue.” 

This divergence in state law and Davidson’s policy means that students have more protections set in place on campus than through the state. Under Davidson policy, the types of cases described in State v. Way can be pursued and brought to justice through Davidson’s internal disciplinary council. However, students who may seek to take their cases beyond campus to state court will encounter laws which differ from campus policy and could have trouble finding a legal pathway to prosecute.

In addition, Davidson’s policies do not define any form of sexual misconduct within the male-to-female gender binary, whereas North Carolina laws do. The state defines rape as “Engaging in vaginal intercourse with another person by force and against the will of the other person.” This definition limits who can be considered a survivor, and therefore who could pursue legal retribution; furthermore, the law never defines or even mentions consent. 

For comments on the heteronormative wording within North Carolina’s legislation, we reached out to Isabel Padalecki ‘22, a mentor in Davidson’s Queer Mentorship Program and a member of Queers and Allies. She points out the exclusion of “non-heterosexual sex contributes to the overall societal narrative that violence within and against the LGBTQIA+ community is somehow justified.” While there are other legal pathways to pursue retribution for the violence Padalecki refers to, it would be of a lesser degree and result in a lighter sentence.

To understand more about how the student population thinks about consent, we conducted an anonymous poll that posted in the college Facebook group with the main question, “What is consent?” One student defined consent as “a continuous thing” consisting of “a series of verbal check-ins […] throughout any sexual event or experience.” Another respondent answered similarly, outlining consent as “ongoing and enthusiastic communication.” While responses varied in length or wording, the overall trend pointed to consent being understood as affirmative and reversible.

North Carolina is the only state in the country with this specific consent loophole, but that will not be true for long if Jackson comes to succeed in the upcoming January session. The result would mean that survivors at Davidson, and all over the state, would finally be able to look forward to legal retribution and justice. 

Comments are closed.