Senator Jeff Jackson Talks Failed Efforts To Close NC Rape Loophole

May 29, 2018

In North Carolina, sometimes "no" doesn’t actually mean "no." That’s because of a loophole in state law: A woman cannot legally revoke consent after a sexual act has begun, even if that encounter gets violent. North Carolina is the only state in the country where this is the case.

“It’s unacceptable that a woman has been raped and police won’t charge it, or the prosecutor’s office won’t prosecute it, or a judge won’t allow that case to move forward, or a jury will find not guilty simply because of this old dumb law," says Senator Jeff Jackson of Mecklenburg County. 

Since 2015, Jackson has twice introduced legislation to close the loophole.  Both times the legislation has died in committee.  Jackson is trying a third time in the current session.  He spoke with WFAE's Marshall Terry.

For nearly a year, WFAE has been investigating the case of a sexual assault victim and how police handled her case. Our work inspired a podcast, called She Says, which debuts Thursday. You’re going to hear a lot of additional segments on sexual assault throughout the eight-episode run of She Says. We’ll hear from victims and examine laws and policies. This interview is part of that.

Editor's note: This interview has been edited for brevity.  (You can listen to the full interview above)

Q: This seems pretty straightforward.  So what’s getting in the way here?

A: I don't know exactly why this isn’t passing. Nobody will actually come out and go on record and say why they won't let it come to a vote. My theory is that if you're one of the folks who really runs the show in the General Assembly and you decide what gets heard and what doesn't and you're just glancing at the bill, it's got words like ‘rape,’ like ‘sex.’ And I think after House Bill 2, everybody is a little skittish. It sounds like a controversial bill if you just read it. If you have someone sit down and explain there’s this loophole, we're the only state in the country that has it, cases are being dismissed or not prosecuted because of this this…then it's controversial not to act on it. But just glancing at it, it's got some buzz words that I think are scaring off the leadership in the majority. I think we're going to be able to get this done because there was such a national outpouring after they decided not to pass it last year. I think they understand the controversial thing here is to not close this loophole.

Q: Do you think the Me Too movement will have any effect this time around?
 

A: Not only that but this bill itself received a lot of national attention last year after they chose not to act on it.  I gave a couple remarks to a Fayetteville reporter. She put them into an article and then that article got picked up and went national. The problem was that happened while we had two days left in session.  After that article went national, I had a lot of Republicans come up to me and say we'd like to get this done but we just don't have enough time.  This year is our short session where we typically don't handle criminal legislation.  I'm going to file it again, but I'm not really optimistic simply because the format of the session really doesn't lend itself to getting criminal laws passed.  What’s more likely is a January 2019 effort. 

Q:  This loophole has its roots in a 1979 North Carolina Supreme Court case.  Can you tell us about that?

A: The ‘79 case called State v. Way...the court held that you can't revoke consent for sex once sex has begun.  The problem is that even though there have been subsequent laws and subsequent cases that indirectly impact this, we don't have an on point decision from a court or a statute saying that's no longer good law. So it's being treated as good law. I discovered this issue when I was a criminal prosecutor before I joined the state Senate, and we had this come up in our in our office. We had a case of revoke consent and we all learned to our shock and dismay that you cannot prosecute in North Carolina under the circumstances. There's a case that was dismissed by a Wake County jury because of this old court ruling. After 40 years...we need to fix this thing.

Q: In the bill last year, you referred to vaginal intercourse. Why no language referring to men who may get raped?

A:  We've expanded the language so the bill that we're going to file this time involves all forms of intercourse. It's not limited to women.