Allie Long

Minus consent: When “no doesn’t always mean no” is law

According to a ruling in the US legal system, withdrawn consent does not qualify as rape. It is exactly ruling like these that stop victims from coming forward.

 

 

Think you can rescind consent for sex once it’s underway? Well, according to a North Carolina 1979 Supreme Court ruling, you’d better think again.

Below is the ruling for the State v. Way case, which came after a judge in a previous trial stated that sex continuing after “withdrawn consent” constitutes rape. The defendant said was an error in instruction to the jury, and the Supreme Court agreed, granting him a new trial:

It is uncontroverted that there was only one act of sexual intercourse involved in this case. Under the court’s instruction, the jury could have found the defendant guilty of rape if they believed Beverly had consented to have intercourse with the defendant and in the middle of that act, she changed her mind. This is not the law. If the actual penetration is accomplished with the woman’s consent, the accused is not guilty of rape, although he may be guilty of another crime because of his subsequent actions. The court’s instruction on this matter was erroneous, entitling the defendant to a new trial.

The ruling came to light recently when a Fayetteville Observer profiled the cased of 19-year-old Aaliyah Palmer.

A man pulled Palmer into a bathroom for sex at a party, to which she initially consented, but when the sex turned violent, she told him to stop. He didn’t.

She thought this was rape but later learned that under NC law, sex continuing after withdrawn consent is not considered rape. She also learned the incident had been videotaped without her consent and potentially shared with her peers. The two men involved were charged with peeping.

Palmer says she is coming forward because she refuses to be a silent victim.

The paper goes on to highlight another case and say that this law prevents many women from coming forward when they are told behind closed doors they don’t have a case.

And it doesn’t get much more horrifying than that.

Lawyers and some lawmakers are in agreement that NC consent laws need to be reformed, but whether they will be – especially this particular one – remains to be seen.

There is no conceivable way to make this a partisan issue, but with the NC legislature, if there’s a will, it’ll find a way. I mean, NC is literally used here as a case study for extreme polarisation.


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My tendency to talk nebulously about rape culture can be met with scepticism when I don’t have an immediate and lengthy list of examples. Sometimes I even doubt myself despite being able to anecdotally attest to the consequences of rape culture by virtue of the way women behave – fear of saying no, feeling obligated to have sex as repayment for a free drink, faking an orgasm just to get out of sex, fear of responding negatively to cat-callers, always watching each other’s backs in situations men don’t even think are dangerous, being scared to come forward after sexual assault, etc. All of this stems from knowing that “no” doesn’t always mean “no”.

Sometimes when I can’t readily think of tangible evidence, I think, “Hey, maybe rape culture is getting better!”

Then I see something like this, and it becomes clear that even in the face of small superficial progress, rape culture is legitimised, normalised, and perpetuated by the law itself.

We can fight victim blaming and advocate for enthusiastic, affirmative consent all we want, but if the law doesn’t reflect those efforts, sexual assault survivors will continue to be silenced and blamed for what happened to them.

It’s difficult enough to speak up and say “stop” once sex is underway and even more difficult to have that “stop” taken seriously. If the law props up the people who don’t take “no” for an answer after sex begins and the other party changes his or her mind for any reason at all, sexual assault survivors will have more cause to stay silent.

We should praise Palmer for her bravery in speaking up and speaking out. I hope her story is enough to reform the NC court ruling. Sex after “withdrawn consent” is absolutely rape. If lawmakers can’t agree on that, I’m not convinced there will be anything left on which they could possibly agree.

 

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