Quantcast
rape

In Most States, Forcibly Continuing Sex After a Partner Says 'No' Is Not Rape

Only eight states recognize a person's right to withdraw consent after penetration has occurred, leaving rape victims vulnerable.

Gabby Bess

Gabby Bess

Photo by Mauro Grigollo via Stocksy

In North Carolina, women can't legally revoke consent during intercourse. A woman named Amy Guy found this out when she tried to take her estranged husband to court after he showed up drunk at her apartment in December and demanded sex, according to local news site WRAL.

"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," she told the publication. However, Guy told him to stop when the encounter turned violent and he refused.

Her husband, Jonathan Wayne Guy, was charged with rape when she reported the crime. But the charge was dropped because in North Carolina, women do not have the ability to legally withdraw consent to sex after penetration. "If the actual penetration is accomplished with the woman's consent, the accused is not guilty of rape," the state's Supreme Court ruled in a 1979 case, setting the harmful precedent.

Read more: Rape Could Become a 'Pre-Existing Condition' Again Under Trumpcare

Under this interpretation of the law, forcibly continuing sex after a sexual partner revokes consent is not rape. Charges against Amy's husband charges were lowered to a misdemeanor assault and he was sentenced to serve 10 months in jail.

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

North Carolina is currently the only state that has explicitly determined that consent can't be revoked once it is given. But only eight states affirmatively recognize that consent can be withdrawn at any time during intercourse: South Dakota, Connecticut, California, Illinois, Maine, Maryland, Kansas, and Minnesota. Only one state, Illinois, has made it law—the others have been prompted to change the way they adjudicate these rape cases through court decisions.

That means rape victims in 42 states are left in a grey area. Or in other words, "the vast majority of states still adhere to the common law principle that once consensual intercourse begins, a man cannot be prosecuted for rape even if the woman withdraws her consent during the act," one legal paper argues. "Though a handful of state supreme courts have recognized the defendant's disregard of withdrawal of consent as a form of sexual assault, one should not construe these examples to mean that the majority of states accept this change."

I don't understand how the law can say that I wasn't [raped].

In her paper "No Means No...Sometimes: Developments in Postpenetration Rape Law and the Need for Legislative Action," lawyer Sarah O. Parker explains how important it is to legally recognize that consensual sex can turn into nonconsensual sex. Where it's not clearly defined in law, victims could be less likely to report their experience of rape, prosecutors could be less likely to take on these rape cases, and juries could become confused about what constitutes rape.

"Legal recognition and recourse would at least provide victims a name for their experience, though it 'does not conform to the rape stereotype.' This would legitimize their experience as victims of crime and, when recognized as such, may increase reporting of these rapes," Parker writes. "Refusing to acknowledge continued intercourse absent continued consent as rape endangers women."

In North Carolina, advocates have been fighting for years to pass a bill that would solidify a person's right to revoke consent but attempts have been repeatedly tabled.

"Everyone understands the law to say no means no, but the reality is no doesn't mean no if you don't say it initially," Amy's attorney, Kristopher Hilscher, told WRAL. "If you don't say no right at the outset, you can't say no later. We fully believe Amy was raped, but the law didn't help her."