News 13 Investigates: Getting away with rape -- loophole in state law a factor

News 13's investigative stories over the past three days along with reporting from Carolina Public Press and 9 other news agencies statewide expose getting an adult sex offense conviction from a jury of 12 is tough. (Photo Credit: WLOS Staff)

“Case law right now says, basically, you cannot revoke consent,” said Rep. Chaz Beasley (D-Mecklenburg County).

That makes North Carolina the only state where no doesn’t necessarily mean no after someone’s consented to sex, according to Skye David, with the NC Coalition Against Sexual Assault (NC CASA).

A 40-year-old court precedent says continuing sex after being asked to stop is not a crime in North Carolina. It's one factor that plays into why fewer than one in four defendants charged with sexual assault are convicted. It's a loophole in the law and could have some getting away with rape.

Carolina Public Press data pulled from the Administrative Office of the Courts exposed that less than one in four defendants charged with sexual assault in North Carolina can expect to be convicted of that charge or a related reduced charge. Here's the link to their investigative series Seeking Conviction: Justice elusive for NC sexual assault survivors.

But that loophole along with another that deals with someone who's incapacitated and whether or not they can consent has the attention of lawmakers who hope to close at least one of those loopholes this year.

“I don't know what to do with this big ball of anger that I'm feeling. I'm mad,” said an assault survivor who didn’t want to be identified but reported her assault this past fall.

“Just because I didn't physically fight or kick or scream or whatever doesn't mean that I wanted it to happen and it doesn't mean it wasn't assault. These are things you honestly ask yourself.

She, like many survivors, keeps replaying what happened between her and the man she was seeing this past fall.

“I didn't fight, I just kind of shutdown,’ explained the woman.

She waited a little more than a week before confiding in a friend who encouraged her to report the assault to police.

“Because I consented to one thing doesn't mean that I consented to what happened to me and it gave him no license to continue,” said the survivor.

“Our system really has to look at how do we prosecute cases, how can we overcome this consent defense, because more often than not, it's one that is raised, and so we've got to go beyond the survivor said versus the perpetrator said and be able to prosecute cases in a different way,” said Angelica Wind, executive director of Our Voice.

News 13's investigative stories over the past three days, along with reporting from Carolina Public Press and nine other news agencies statewide, expose getting an adult sex offense conviction from a jury of 12 is tough. A 1979 North Carolina Supreme Court ruling that says once sex starts a woman cannot withdraw consent complicates matters.

“As soon as you penetrate, the act has begun, and it doesn't split it up into segments of the act, so, therefore, if you withdraw consent in the middle it causes that problem,” Rutherford County District Attorney Ted Bell said.

With consent and reasonable doubt raising questions for juries, lawmakers in Raleigh have turned to legislative solutions.

“There are several folks who have shared their stories about how something happened and they tried to revoke consent and then they weren't able to actually do that or actually get a relief from the courts for that,” Beasley said.

In 2017, Beasley, along with state Sen. Jeff Jackson (D-Mecklenburg County), proposed making continued sex after consent is revoked illegal, but the legislature never acted.

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State law can make it more complicated when drinking or drug use is involved. State law says if you’re under the influence, you can't give consent.

But, a 2008 court of appeals case created another loophole. You could not be considered mentally incapacitated if you willing drink or became impaired, making it tougher for prosecutors to prove second-degree rape or sex offenses.

“We want to make sure that our laws remain simple, that they remain clear and they remain responsive to current needs,” Beasley said.

Wednesday, a group of lawmakers introduced HB 393 to modernize the state's sexual assault laws by changing the definition of mentally incapacitated to include if the individual willingly drank or became impaired.

“Our state can definitely do more, but I do think we have folks who are paying attention to ways we can change our state laws for the better,” Beasley said.

Changes that won't affect one survivor, who was recently told, despite months of investigators pouring over her text messages, her case wasn't strong enough to go forward.

“I go back to my support system and talk to people. Some days are good. Some days I don't want to get out of bed,” the woman said.

She's taking it day by day, hopeful these proposed changes could make it different for the next survivor.

“I have to find a way to move forward, and I just want closure,” said the victim.

Legislation spearheaded by Beasley also makes it a felony to drug a person's drink. If passed, the changes would become law Dec. 1, 2019.

Lawmakers have discussed changes to the consent law but have yet to act, but Beasley says, “stay tuned.”