This story, of course, deals with highly upsetting content, continue as you will.

In 1979 the NC state supreme court handed down a ruling that made it non-criminal to continue to act as if one had someone else’s sexual consent after that consent had been withdrawn. Worse? It did not matter if the rapist acted violently: if an encounter began with sexual consent, criminal law in NC would treat rape as consensual sex until whenever a rapist decided to stop raping. Prosecution would have to wait for the rapist to begin a separate, uniquely distinguishable act of sexual contact against a person without consent.

It was, in short, the Blue Balls theory of automatism. She was asking for it, writ in legalese alongside the ever popular, He’s a good guy, he just couldn’t help it.

 

I condemn the NC Supreme Court, of course, but no more than I do other state supreme courts. In Oregon in 1979 a perp didn’t even need to start a sexual encounter with consent to avoid rape charges as long as the victim was the rapist’s spouse. Oregon carried on the marital rape exemption longer than any other state. So I get it. Sexism fucks up everything, and different states fixed different things at different times. Some states fixed the law so that the revocation of consent would be respected, and fixed that before 1979. Others fixed it later. Oklahoma needed a SCOTUS ruling to provide one alcohol drinking age regardless of gender; other states set a single age long before that.

I bring this up today because in North Carolina, the precedent set by their state supreme court has never been overturned, limited, or updated in any way. But the court was simply interpreting the statutory meaning of rape. It wasn’t interpreting or establishing constitutional protections. So the state legislature is just as free as the state supreme court to fix this problem: at any time, the legislature can introduce a bill to clarify the statutory language, pass it, and send it on for the governor’s signature. The governor can then sign it and the 1979 decision is resigned to the dustbin of sexist history.

That is exactly what Democratic state Sen. Jeff Jackson is attempting to do. He was responding to the case of Amy Guy and her subsequent advocacy for change. When her abusive, violent estranged husband showed up demanding sex, she was already thinking in terms of safety: will I make it through this night less injured if I consent to sex? In her words, she decided that

Since he was getting angry, I figured it would be better to go ahead and agree to the sex because I figured that was the safer thing for me to do

While many of us believe that this isn’t “true” consent, I do understand that in many cases the law has to respect clearly communicated consent even if the reasoning is abhorrent. Had she been considering an immediate threat, even the courts would not have considered this to be legally sufficient consent. However, Amy Guy was using the contextual knowledge of her past experiences to make that assessment, and absent a current threat the law was going to treat this as consent for purposes of criminal prosecution. Stomach turning, I know, but it’s hard to come up with methods of determining the legitimacy of consent without considering factors that weren’t present in this case (such as protective orders being violated by mere proximity) or that don’t create their own very large problems.

All this is bad enough, and a great deal of research tells us that it’s entirely possible that Amy Guy would have experienced emotional trauma equivalent to that of people who have been raped according to the narrow interpretations of criminal statutes. But her abusive, violent estranged husband – Jonathan Wayne Guy – chose to be violent after getting Amy’s initial consent. Raleigh based WRAL, who interviewed Amy and reported on this, states that Amy’s description of what happened next can be summed up like this:

he got violent with her, and he wouldn’t end their sexual encounter even though she begged him to stop.

Jonathan Wayne was prosecuted. Initially he was charged with second degree rape, but prosecutors had to drop that charge and proceed only with a charge of misdemeanor assault on a female. The WRAL report continues,

“I was devastated. I didn’t understand how that could be because I knew I had been raped,” Amy Guy said. “I don’t understand how the law can say that I wasn’t.”

WRAL News usually doesn’t identify victims of sexual assault, but Amy Guy came forward to make a public stand on what many North Carolina prosecutors consider an archaic law that needs to be taken off the books.

“We firmly believe that people should have the right to revoke their consent,” Wake County District Attorney Lorrin Freeman said. “Anytime someone no longer wishes to be involved in a sexual act … they have the right to withdraw that consent and the right to revoke that consent.”

Let’s not applaud Freeman for getting this one right. After all, it is 2017. Getting this one right at this point isn’t that hard. Which is why state Senator and Democrat Jeff Jackson filed a bill to fix the statute about a week after Jonathan Wayne’s case ended in a guilty plea to misdemeanor assault.

But in North Carolina, the state senate is controlled by republicans. The senate’s session has just ended without Jackson’s bill, SB 553, getting a hearing, much less a vote. Law and order Republicans quietly killed a bill that lets perps literally get away with rape, and they did so despite the support of prosecutors*1 for the bill.

Although the senate will likely be called back into session for a few votes over the next 18 months, the primary biennial lawmaking session is over, and SB 553 is almost certainly dead. However, this doesn’t mean you shouldn’t contact Republican legislators in NC and express your opinions. It doesn’t mean you shouldn’t thank Jeff Jackson. Jackson has promised to reintroduce the bill in subsequent sessions until it passes, and any political price exacted from Republicans now only makes Jackson’s job in subsequent sessions easier.

 

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*1: again, this is contextual. Prosecutors hardly ever turn down the power to charge more people with more crimes or to convict more easily for larger penalties with less evidence. Prosecutors have great faith in prosecutorial discretion. I am not saying that prosecutors’ support is a good reason for a thinking person to support a bill that is otherwise questionable. I’m saying that in this world, in this political context, Republicans can and do assert that opposing a bad bill that is supported by at least one prosecutor is to be so soft on crime it is tantamount to criminality itself. Given the frequency and strength with which Republicans make these assertions, they should be treated as if their beliefs were genuine and that opposing this bill is something that Republicans believe is tantamount to criminality … and which they did anyway.