North Carolina: Consent to Sex Cannot Be Withdrawn

by Cara on September 23, 2010

in courts, misogyny, patriarchy, rape and sexual assault, reproductive justice, violence against women and girls

Trigger Warning for rape apologism, specifically within a legal context, and descriptions of rape.

Today I came across a story about rape charges being dropped against a high school student and star football player in Charlotte, NC. Stories about rape charges being dropped always interest me, not because the reasons for dropping charges are always nefarious, but because they too frequently are (especially when a popular athlete is involved). And even more commonly, the expressed reason for a decision to not prosecute tells us an awful lot about social and legal attitudes towards women and other marginalized social groups, sex, consent, and rape.

As usual, trying to discover the reason why charges were dropped required a bit more work than it should have. Some reports simply stated that the district attorney had found the sexual contact to be consensual — an utterly jaw-dropping claim for a DA to make when the accuser has not recanted. Such a claim strikes me as downright irresponsible and rape apologist — insufficient evidence that a rape was committed is not the same as evidence that consensual sex did occur. When an accuser still maintains that she was raped, it’s downright despicable to, without explanation, give a defense attorney license and ammunition to say this:

Sombo’s Attorney Brad Smith said he found out about the charges being dropped late Tuesday afternoon.  “The case is done, the D-A said they found insufficient evidence.  It was consensual all along.  He’s been vindicated, like we knew he would all along.”

So with the absence of a recantation, what possible reason could the district attorney have had for declaring the alleged sex consensual? The Charlotte Observer provided the nauseating insight:

The dismissal documents said the young woman and Sombo were dating at the time of the incident and that she wanted to limit their contact to kissing. The couple then agreed to “heavy petting.” The papers said intercourse began consensually, but she then told him to stop.

According to the dismissal document, a 1979 N.C. Supreme Court ruling called State v. Way says that if intercourse begins consensually, “no rape has occurred though the victim later withdraws consent during the same act of intercourse.”

The fact that this is true makes me feel sick to my stomach. And the fact that I did not know it to be true makes me feel painfully naive. But I imagine that I am far from the only one who remained so ignorant.

Indeed, further research indicates that North Carolina is hardly alone in its outdated, misogynistic definitions of consent and sexual assault:

As of 2003, only eight states have determined in one way or another that a woman’s withdrawal of consent during sex requires the man to stop, lest he be qualified as a rapist. Maine was the first state to issue such a decision; in 1984, the Maine Supreme Court decided that “a rape occurred because of the defendant’s use of forcible compulsion to make the victim submit to continued intercourse after she withdrew consent,” in the appealed case of Gordon Robinson III (Lyon, 2004). Similar decisions were then handed down by Connecticut, South Dakota, Minnesota, Alaska, California, and Kansas – all in response to an appeal or trial (ibid.). Illinois is the only state that has changed its statute outright to define continued penetration after withdrawal of consent as rape. Called the “No Means No” Act, it read: “a person who initially consents to a sexual penetration or sexual conduct that occurs after he or she withdraws consent during the course of that sexual penetration or sexual conduct,” (ibid.) It was introduced into the Illinois State House of Representatives, and was signed into law in July, 2003 (ibid.)

The cited article by Lyon is available here (though, trigger warning). Since 2003, at least one state, Maryland, has joined the above eight states in their explicit recognition that a person has a right to control hir body and to restrict access to it, no matter what stage of sexual intimacy one might currently be engaged in. Other states, apparently, at least unofficially work under the rule that once consent to a certain sexual activity has been given, a person’s body thereby become property of hir sexual partner. And, of course, the people whose bodies usually become legally no longer their own just so happen to be the bodies of women.

This standard of consent is misogynistic on its face — women are the majority of rape victims, and bring the vast majority of rape cases. Deciding that consent cannot be withdrawn once it has been given is primarily deciding that women give up all rights to their bodies by agreeing to sex. This understanding of consent reflects and reveals outdated and sexist notions of sex between men and women as being about possession and control for men and relinquishment and surrender for women. Sex is not seen as a collaborative process between two (or more) actively involved individuals of any genders, a generally pleasurable negotiation where the enjoyment and best interests of all parties is not a benefit but a goal, but rather a power struggle strictly between men and women, where a woman “loses” by agreeing to participation and can never again retract that victory from the man once it has been “won.”

Sex is a battle, and bodies are commodities. And as it has been for centuries of kyriarchy, ownership of women’s bodies is obtained through penetration, and that ownership cannot be revoked. For the state of North Carolina, sexual contact makes women non-human. If they were ever even people to begin with.

The accuser’s father has expressed plans to contact legislators in an attempt to ensure that they prevent a repeat of what happened to his daughter. But while I wish him all the support and success in the world, the fact that one does not have the right to withdraw sexual consent once it has been given in North Carolina is astonishingly not the only deeply disturbing thing about this case. The question of how the DA determined that this rule even applied to this case also currently remains unanswered. Because the alleged victim maintains that no consent to intercourse was ever given at all:

The young woman involved in the case told the Observer in a phone interview that she never consented to have sex and, once it started, told Sombo repeatedly to stop.

“He wouldn’t listen and he didn’t stop,” she said, speaking on condition of anonymity.

She said she suffered physical injuries and has been going to counseling. She said she wants to stay at Butler but worries about the threats she’s received by phone and online from social media websites.

How, exactly, as it determined that charges ought to be dropped on the basis that rape cannot be committed in the eyes of state law once consent has been granted, when the allegations involve no consent having been granted at all? Who decided, and how was it decided, that consent was given and then revoked? Was this the accuser’s defense? If so, why was his story taken at face value? Was it a part of the accuser’s initial complaint? If so, why were further clarifications not taken into account?

Presumably the dismissal documents themselves might shed some light on the decision, but I was unable to find them online (let me know if you have better luck!). No matter which way you look at it, though, the North Carolina legal system is utterly steeped in rape apologism and misogyny. At this point, it’s really just a question of extent.

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{ 9 comments }

1 Melissa September 23, 2010 at 4:42 pm

Well shit.

That’s all I’ve got today.

2 M.Clarkle September 23, 2010 at 4:55 pm

Words can’t even begin to describe how disgusting I find this. Apparently young women don’t matter in North Carolina.

3 Aaminah September 23, 2010 at 6:48 pm

Cara, you’ve finally succeeded in making me speechless. This is so appalling (not even a strong enough word) that i don’t know what to say at all. :(

4 Jenna September 26, 2010 at 11:30 am

I am disgusted, saddened and repulsed.

I am also not surprised.

In the US, and in the south particularly, athletes are gods among men and therefore infinitely innocent and right. Women are almost always judged to be the provocateur (what did you do to that man to make him stalk/rape/beat you), the seducer (you know if you dress/dance/drink like that you’re asking for it), or desperate for male attention (she’s just saying that because he won’t have anything to do with her). Women are considered possessions that men, especially their golden boys, have a right to. It’s evil, wrong and vile…..and I have no idea how to change it.

5 Marsha from NC September 28, 2010 at 12:07 am

The victim was not attending Butler high school, but another high school in the area. The 17 year old victim and the football player dated back when they were in 8th grade not currently.
I hope you readers would log on to Womensrights.change.org and sign the petition listed there to change the North Carolina law.

6 Huw September 28, 2010 at 6:48 am

From what I know of the south, and NC in particular, this doesn’t surprise me in the least. For all their claims to be the ‘Land of the Free’, Americans have significantly fewer civil liberties than Europeans and appear to have swallowed completely the myth about increased surveillance and police/state intrusion being necessary to their liberty.

So are women still regarded as the property of ‘their’ men? As legitimate playthings to be used and discarded with no regard for their well-being? I hope not but it wouldn’t surprise me at all.

7 Melanie September 28, 2010 at 11:54 pm

Reading this post made me cry. It is very sad that women in the 21st century cannot withdraw consent after penetration. When I was in college, I consented to have sex with a boy. I was virgin at the time, but in the middle, I told him to stop because I was hurting. The boy didn’t stop. I was so depressed after the incident. My next boyfriend left me because I was having panic attacks every time we tried to get intimate. It took me two years to over come my fear of intimacy. I bet this stupid law was written by men. We need more women in our justice system to bring leverage.

8 Terri Phoenix November 9, 2010 at 5:32 pm

This is absolutely ridiculous and the laws in NC needs to be changed. People have a right to control what happens to their bodies in each moment. If one party says “no” or “stop” at any point and the other person(s) continues, that interaction is by definition is non-consensual. Thank you for raising my awareness of this. Thank you also for using gender non-specific language (e.g., hir).

9 Rose December 10, 2010 at 8:00 pm

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