In North Carolina “no” doesn’t always mean "no.” That’s because of a loophole in state law. The loophole dates back to a 1979 case in Mecklenburg County. And for the past several years a lawmaker from Charlotte has tried to close it — but he’ll have to try again. WFAE’s Sarah Delia wanted to know why a seemingly bipartisan bill sponsored by a Democrat and a Republican, continues to go unheard.
For the fourth time, a bill that would close a loophole in North Carolina law when it comes to consent is dead. And Jeff Jackson, the state senator who has filed it four times, is beyond frustrated.
"I wish we could say we were confused at this point except at this point we know," Jackson said. "A couple of years ago you could say, 'Maybe these guys just don’t understand the issue.' You can't give them the benefit of the doubt anymore. This is purposeful."
The "guys" Jackson is referring to are Republican state lawmakers. The issue is being able to revoke consent during sexual intercourse.
"There are guys who have a problem with closing this loophole, and they will never say so publicly because they would be shamed, but they can kill it privately and that’s the best of both worlds as far as they are concerned because they can keep it from coming up for a vote without their fingerprints on it," Jackson told WFAE's Sarah Delia.
When asked why, Jackson responded: "Because they are opposed it." When asked why Republicans would oppose such legislation, Jackson responded: "Because of deep social conservatism among a handful of members."
Particularly in the Senate. We wanted to ask Republican state senators the same question: Why has this bill never left committee?
So, we reached out to multiple state Republican lawmakers. That included Sen. Dan Bishop of Mecklenburg County as well as Sen. Bill Rabon, the chair of the Rules Committee and Operations Committee where the bill idled. We reached out to Sen. Danny Britt, the Republican who sponsored the bill with Jackson. None of them made themselves available for an interview.
Every member of the Senate Rules and Operations committee was contacted, including the 13 Republicans and seven Democrats who make up the committee. The few Republicans who responded to our inquiry declined to comment or deferred to the chair of the committee, Sen. Rabon, who never responded to our request.
State Sen. Natasha Marcus, a Democrat from Mecklenburg County and a co-sponsor of the bill, says it’s hard to figure why this bill hasn’t left committee. But she points out the contention in the legislature doesn’t help.
"The majority party does not want to give anyone in my party a win. It’s that simple," Marcus said. "I believe that if this bill came up for debate it would be hard to oppose it and tell women, 'No, you have no right to revoke your consent.' So, all I can think is that the majority party doesn’t want to give Democrats a chance to pass good legislation, something we can go to the voters and say, 'This is what we got done.'"
The whole issue around this consent loophole dates back to a 1979 case, State v. Way. It determined that if two people are engaging in what starts off as consensual intercourse — and if during the course of sex the woman rescinds consent — it doesn’t matter.
"If that penetration has occurred and then that person revokes consent, it’s already occurred and you can’t say, 'No, that wasn't what I wanted," says Julia Hejazi, an assistant district attorney in Mecklenburg County. She's also the team leader of the Special Victim's Unit at the DA's office.
She points out if penetration stops and another sex act begins that is not consensual, that second incident could possibly be prosecuted. And she says it could be very difficult to prosecute the first act that started consensually because of State v. Way.
"I believe that this is a very pointed piece of legislation in which Sen. Jackson is attempting to fix what happened with the Way case," she said. "And also, to make it clear that because a person says yes they then can’t say no. And I think that’s what this is limited to and I think that’s a very important thing for the law to say."
Jackson’s bill states“a person who consents to vaginal intercourse or to a sexual act can withdraw that consent at any time during the course of that vaginal intercourse or sexual act.”
It goes on to say that "a defendant who continues the act of vaginal intercourse after consent is withdrawn is deemed to have committed the act of vaginal intercourse by force and against the will of the other person. A defendant who continues the sexual act after consent is withdrawn is deemed to have committed the sexual act by force and against the will of the other person."
The addition of “sexual act” goes beyond vaginal intercourse and offers protection to both genders who rescind consent.
"So, there are a number of reasons why someone would want to rescind consent, and no continues to be no," says state Sen. Joyce Waddell of Mecklenburg County. Maybe the sex turned violent. Maybe something was communicated during intercourse that made one party change their mind.
Republican House Speaker Tim Moore would agree with Sen. Waddell. Moore is the only Republican currently in office we reached out to who would speak to WFAE on the record about Sen. Jackson’s bill. And he supports it.
"I do support that bill, and there are some just very egregious examples out there where someone has given their consent and where, at some point, they have withdrawn their consent but it continued," Moore said. "And I would submit that’s rape. If someone withdraws their consent for sexual conduct, then that is rape and it needs to be prosecuted in such a way."
Jackson says if the speaker of the House supports the bill, he should work to get it passed.
"He’s the type of guy who, when he says he’s in favor of it, OK, well I expect further action," Jackson said.
Jackson says the bill will be filed again with his support. He’s willing to file it himself or let a Republican file it with his name off of it.
And while Jackson’s support isn’t going anywhere, neither is the support of freshman lawmaker Natasha Marcus.
"I myself experienced something in college that I never got any justice for, so I have some passion on this issue. Let’s make sure the law is clear and doesn’t overstate," Marcus said. "We certainly don’t want to convict anyone of rape who shouldn’t be. No one wants that, but we do want to protect a woman’s right to stop a situation that has become uncomfortable or violent or beyond what she consents to."
So, Democrats say they’ll continue to fight for this bill, a bill with bipartisan support that addresses a loophole that surprises many in North Carolina. For now, Republican sentiment as to why this legislation gets no movement is left hanging in the air, much like the bill itself is left to, yet again.
