Trigger Warning for graphic descriptions of rape and discussions of rape apologism.
Last week, I wrote about a disturbing news story out of North Carolina, in which a rape case was dismissed by the district attorney on the basis of a 1979 court ruling that stated a person cannot withdraw consent to sex once it has begun. The ruling seems to most specifically apply to a woman’s right to withdraw consent to intercourse with a man after the point of initial penetration, but also sets a chilling precedent for all people and all types of sexual encounters.
The good news is that since my original post, word has spread. Alex DiBranco blogged about the issue on the Women’s Rights blog at Change.org (comments are not recommended), and they’ve started a petition in solidarity with the accuser in this case and her father, who are contacting legislators in attempt to change the law.
Local media in Charlotte, North Carolina has also taken notice. Last night CBS affiliate WBTV ran a story on the issue, for which I was personally interviewed. The full article is available at their website, with a slightly more in depth video (which is sadly not able to be embedded):
The State v. Way case involves a supreme court decision from 1979 on a case that originated from Mecklenburg County. Critics say it gives a man license to do whatever he wants once a woman gives initial consent to sex, and it doesn’t let her change her mind.
“It’s outrageous. It’s a violation of human rights,” said Cara Kulwicki, a feminist writer who has written about the case on her blog The Curvature. “No one is owed consent to sex. If consent is not revocable that’s exactly what the state is saying.”
The accuser’s father has contacted lawmakers in Mecklenburg County to try to get a new law that would undo the State v. Way decision.
“We want the representatives and the senators to take up this bill and write it so that if you say no it’s no, like it is pretty much anywhere else in the world,” he said. WBTV is not identifying his name to protect his daughter’s identity.
Of course, “the other side of the story” is also presented:
But Brad Smith, an attorney representing Sombo, says the correct interpretation of State v. Way doesn’t make it nearly as difficult for a woman to withdraw consent as critics believe.
He says to make the changes the accuser’s father wants to push for would go too far.
“He’s basically asking the General Assembly to make consensual sex illegal,” Smith said.
But Smith is either lying through is teeth or saying that the ruling was interpreted wrongly in his own client’s case — because the dismissal itself makes things really, really clear cut. At the time of my original post, I didn’t have access to the dismissal document itself. But it’s now available, and the actual decision is just as bad if not worse than it initially looked. You can view the dismissal as a Google doc here for yourself (WBTV has a link to a version of the document, but it’s currently broken), the most relevant portion of which is reproduced below (trigger warning):
The victim’s statements to the responding officer and the sexual assault nurse examiner indicate that at some point during this event Mr. Sombo put on a condom and penetrated her with his penis, it hurt and she told him to stop. Mr. Sombo did not acquiesce to her desire and proceeded with rough vaginal intercourse while she continued to tell him to stop. State v. Way (297 N.C. 293) states that if initial penetration occurs with the victim’s consent, no rape has occurred though the victim later withdraws consent during the same act of intercourse. The victim’s initial statements to law enforcement and medical personnel do not indicate initial penetration was without her consent, rather, the statements imply that she withdrew consent because of the pain she was suffering and that the defendant paid no heed but continued to hurt her. Therefore, applying State v. Way to the facts of the case, a rape has not been legally committed.
From this, we can deduce firstly the answer to the question I posed in the last post: Why, if the victim says she never consented at all, did the DA dismiss her case on the basis of initial consent? That answer seems to be that they twisted her initial words (failure to note explicitly that she didn’t consent to penetration isn’t the same as stating that she did consent; consent is the presence of a yes, not the absence of a no), and then refused to acknowledge her later clarifying statements.
We can secondly see that Sombo’s defense attorney is making his statements with the hope that no one will read the actual document. If a woman repeatedly stating that a sex act hurts and she wants it to stop is not enough to hold a man who refuses to stop legally culpable, how easy can withdrawing consent possibly be? Again, he can’t have it both ways — either the law legalizes rape, or it was applied incorrectly here.
I also want to briefly address Smith’s statement that to legally grant the right to withdraw consent from sex would “make consensual sex illegal.” I’ve seen this argument many, many times in many of the very, very nasty comments that have been left and deleted on this blog over the past several days. I believe that all of the specific people I’ve seen make the argument were being disingenuous, but I worry about those who are so steeped in a culture that parrots over and over again myths about how women lie about rape that they don’t understand what is being addressed here. And I know that rape apologists are deliberately exploiting this prejudiced cultural narrative.
Being able to withdraw consent to sex does not mean being able to say after a fully consensual sexual encounter “I now withdraw my consent!” and go file rape charges. Contrary to how many times I’ve had this argument made to me. What it means is simply this: no means no, at any point during a sexual encounter. If someone agrees to a sexual act but then wants it to stop somewhere in the middle, it needs to stop. It’s not about the right to “change your mind after the fact” or, as rape apologists so commonly like to put it, “the next morning.” It’s about the right to change your mind during. Whether because of pain or discomfort or lack of enjoyment or just plain old whim or something else entirely. Everyone has the right to say “stop” and expect their sexual partner(s) to stop. Period. And so long as people do not have that particular legal right among others, they do not have the legal right not to be raped.