North Carolina and Withdrawal of Consent: UPDATES

by Cara on September 28, 2010

in courts, human rights, misogyny, patriarchy, personal and self-promotion, rape and sexual assault, violence against women and girls

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.

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{ 16 comments }

1 dee es September 28, 2010 at 2:31 pm

Just a question for clarification: In the section of the dismissal that you quote, it says the victim withdrew consent at the point she was being physically harmed. It seems that maybe the ruling is made on the basis of semantics, where “rape” doesn’t describe the crime because the sexual encounter was consensual. Is it possible to try this sort of case–and others where sex is consensual but certain sexual acts/practices that cause harm are definitely not consented to–under sexual assault? If it is possible, would that tactic reduce the severity of the crime?

2 Cara September 28, 2010 at 2:56 pm

dee es, I don’t see how it’s an issue of semantics at all. The dismissal does not actually say that the victim withdrew consent at the point she was being harmed — it says that she was penetrated (no statement of consent or lack thereof made), and then she told him to stop when she was harmed. And he allegedly did not stop.

So how can that possibly be described as consensual? There are two issues here:

1. The alleged victim says she never consented
2. The state claims she did consent but then withdrew it.

It’s difficult to discuss the aspects of this case because of the way these two issues overlap and contradict each other. But even if we were to address only the second, the fact that she did not consent to pain is not the problem, because the DA admits that at the point of pain, the victim said to stop the intercourse. Not to somehow continue the intercourse with the pain, but to stop period. It sounds like you’re trying to separate the penetration and the pain caused by the penetration. That’s like trying to separate choking someone and the inability to breathe caused by choking someone.

3 bonnie September 28, 2010 at 5:20 pm

First off, I’m glad they interviewed you, I thought what you said was strong. I’m also glad you wrote a follow-up and specifically addressed the comments and what you said about being able to withdraw consent during, not after. I do feel like rape apologists use a panicked, slippery-slope argument about withdrawing consent often – the “but at WHAT POINT, she could say it ANYTIME” As if the thing they need to be most worried about is at what point they could be “caught” raping someone. As if it’s something that just happens to people and no one does it on purpose.

As an aside, I realize that I physically cringe when I’m hearing people say “withdraw consent”, “take back, consent”…

It’s not that it’s incorrect language, but I got to thinking about why we discuss it that way. It’s nitpicky, but it started to get to me.

I feel like the language that is often used around consent is a painful reminder that in a rape culture it’s viewed as a blanket permission slip or something tangible, that is never complicated once taken from a woman. I feel like the terms we discuss it in make the idea of “consent” the stand- in for the person’s body itself – when once it’s given, there are NO circumstances at which this should be taken away from another person. As if someone is ever entitled to full use of a body.

Whether we are talking about consent to hold someone’s hand or have sex, no one is entitled to do something that can’t immediately be changed if it hurts, or it’s uncomfortable or even if you are just fickle and are having difficulty deciding what you want. PERIOD.

Maybe that is part of the reason (or just another part of the bigger problem) that people can’t seem to wrap their brain around the fact that no means no, anytime, for any reason? People cling to anything they can see to make it consensual and rationalize – items on a contact of permission (she dressed like someone agreeing to sex, she gave consent to a date, to a kiss, to some sexual contact… and so on and so forth). And even the words we use to discuss consent help out these rationalizations that do nothing but bolster the stereotypes that women are playing mind games, all dirty tricksters, looking to change their mind and deny men the tangible thing (access to use a woman’s body) they’ve laid claim to. The part that misses the point is that, let’s say there is a woman who is playing terrible mind games and just messing with a man’s head, giving consent and then pulling away and then teasing or whatever… her body is still not something to take. I would suggest he walks away and doesn’t engage that behavior anymore, but at NO point is sex something entitled to him. “Consensual” means agreement on a circumstance between two people – not just that the man gets what he came for… and I’m tired of people confusing the two.

This is why (to respond to Dee Es above) it has to be called raped period. Some consent + saying no later doesn’t make it only partially rape, saying no makes it rape full stop. Not to mention you don’t know how exactly someone is going to touch you before it starts, so if it’s not what you want or expect, there is no “oh wait, I consented to sex, even though this is different than what I thought, too late now!” There is only “I want this to stop right now” and whether or not it does determines the problem here.

I mean, these ideas are obvious and it happens over and over again, but I’ve never really thought about the words of “taking back” or withdrawing consent as so problematic before, just by description.

Or maybe I’m just so sickened by this whole thing that I’m picking apart grammar and word usage rather than deal with the total picture.

Aside from not wanting to live in a rape culture, since we are currently in one and have to constantly be battling with it, sometimes I just so badly want a lexicon that is officially and consistently used where (especially in the media) people call things what they are. In this imaginary world where never again does a newscaster say “had sex with” to describe what a rapist did, they also would pause and think “she didn’t withdraw anything here… because she didn’t give anything tangible, she said no… and when he didn’t stop it was rape. She did not hand over the deed to her vagina. The context here matters more than putting emphasis on the fact that this man was DENIED something, that she (heaven forbid) CHANGED HER MIND.”

Is that so hard? To want people to think about what they are saying and why?

((headdesk))

This has been a long comment and I fear I’m talking in circles. So I will stop now.

4 Jadey September 28, 2010 at 6:30 pm

Everyone has the right to say “stop” and expect their sexual partner(s) to stop.

There you go, North Carolina (and other places with antiquated rape laws) – your new legislative paradigm. Is that really so hard?

Thank you, Cara.

5 dee es September 29, 2010 at 12:52 am

Thanks Cara and Bonnie. I missed the important point that she never consented in the first place. That changes the whole scenario. The scenario that I was wondering about in terms of sexual assault charges rather than rape charges would depend on a consensual encounter, but not necessarily a incident where sex was defined by vaginal penetration by a penis.

Let me say here that I agree with Bonnie that the entire lexicon is fraught. Reading the ruling also makes me cringe. However, it also makes me imagine a strictly hypothetical scenario where a sexual encounter (again, generally sexual, not necessarily penetration) is consensual, but certain sex acts remain off limits, even if initially agreed to.

I have in mind a situation where someone says, “Yeah, I’ll try that,” but then decides whatever “that” is is undesirable or even harmful. The NC court in question decided that such a case wouldn’t legally count as rape. But could that count as sexual assault?

This is, admittedly, a theoretical question. So let me suggest a test case that reverses the power dynamics: A man goes to a dominatrix in NC and pays to be whipped. During the whipping session he decides he doesn’t like it because the whipping is in fact harmful to his physical well being. He asks the dominatrix to stop. She does not.

The court in question wouldn’t call that rape, but might they call it sexual assault?

I’m not trying to undermine the seriousness of the actual case here. Rather, I am wondering if there’s a better way to classify the breech of respect for the victim’s humanity. Cara, as you say, the issue of initial consent is not clear. However, the dismissal does say that, “The victim’s initial statements to law enforcement and medical personnel do not indicate initial penetration was without her consent.” Even if he misunderstood the reality of the situation, it seems to me that the judge was operating on the basis of semantics. In other words, he won’t call it rape because consent wasn’t clearly denied at the outset in toto. The point is, though, that semantics provides a very weak basis for understanding the power dynamics at play, especially considering physical harm was the outcome of the sexual encounter.

Might there be a better way to try the case under an inadequate legal system? (Sorry for being so wordy! I hope the question’s clearer now.)

6 Cara September 29, 2010 at 11:16 am

I don’t know how else to answer the question other than to say that whatever term we’re using, whether it’s rape or sexual assault, someone never giving consent and the other person acting anyway, and someone saying “stop” in the middle and the other person not stopping, are the same crime. “Stop” and “no” mean the same things at any point. If saying “no” and not having that no heeded constitutes an act of rape, it is an act of rape AT ANY POINT. If saying “no” and not having that no heeded constitutes an act of sexual assault that does not rise to the level of rape, wherever we’re placing that line, it is an act of sexual assault AT ANY POINT. Either before the start of an act or in the middle of it.

7 Cara September 29, 2010 at 11:23 am

Bonnie –

I definitely think language is important and am really big on looking at the ways that the language we use to talk about rape (and sex, for that matter) contributes to and reinforces rape culture. This is one I hadn’t thought of before and will have to think about further. In this case, my inclination towards the terms I was using came from my attraction to the word consent. I think consent is a really, really important word for talking about both sex and sexual assault, and that we need it, or at least one very much like it. My attraction to the word consent and inclination to using it as a starting point influenced my decision to use language based around it (though truth be told I didn’t think too hard about it one way or the other). Again, it’s something I’m going to have to ponder more — thanks for your thoughts!

8 Melissa September 29, 2010 at 1:49 pm

This whole thing makes me sick.

9 bonnie September 29, 2010 at 3:37 pm

Hi Cara,

Just wanted to clarify, it wasn’t your usage of the phrases that was bothersome to me. My thoughts were after watching the video and going looking for more news coverage. I honestly hadn’t ever thought about it before, I just found the ways people used the word (good and bad) interesting and I don’t know that there is a need for this to be replaced, just that I’m going to notice now what other codes and markers accompany it. Specifically in the media. i.e. Is someone saying “taking back consent” as if it’s completely ridiculous that anyone has the right to do that? If so, that’s a problem. etc.

I think I got a bit carried away with the semantics part of my thoughts on it and wished I had edited my comment more before posting!

I agree that “consent” is a crucial word and under-discussed concept. I want to see more of it, not less, no matter how it’s framed.

10 Roger A. Canaff September 29, 2010 at 11:11 pm

Cara:

Thanks for your important actions in helping to bring this case to public consciousness. Let me add some legal perspective: I’m a long-time child abuse and sex assault prosecutor who now consults on these same issues.

First, I’d like to voice my unconditional support for your opinion, not only philosophically but legally as well: “No” should mean “no,” regardless of when it is uttered during sexual intercourse, and the sexual partner of the person saying “no” should immediately stop, period. Failing to stop when one’s sex partner says to stop (thereby withdrawing the consent to the continuing act) constitutes rape. The idea that women regularly lie about being raped because of day-after regret, or that “allowing” women to withdraw consent after it’s given is somehow akin to breach of contract is ludicrous.

I haven’t yet been able to track down the actual case of State v Way although I now have the cite for it. One serious disclaimer: I don’t have all the facts and I’m not familiar with the case. That being said, I don’t understand why the prosecutor wrote up the dismissal document the way she did. (The document is signed by a prosecutor, by the way, not a judge. The signing ADA appears to be a Samantha Pendergrass, and I’m assuming she’s female. A judge might have signed off on the dismissal, but the document you’ve included here, as you many know but a few of your readers might not, is in fact a document that a DA draws up declining to proceed with prosecution- it’s not a judges’ opinion but the DA’s.)

It looks to me like a very sloppy dismissal write-up first off, right down to the bad grammar. As you point out, the document isn’t clear about how exactly the DA’s office has determined that the initial penetration was consensual- as you note, there appears to have been, at best, an absence of ‘no’ rather than a ‘yes.’ And of course, the victim herself is maintaining that she never consented, so who knows how the DA came to this conclusion or how she was treated by that office or by the police? I’m surprised at the off-hand way the case is dismissed here, particularly because it was reasonable to assume that the case would attract attention. And even if the office was really bound, as they say, by the Way case, the language they use to describe the facts is very harsh. If Way does control, NC has a serious problem on its hands and does need to change its sex crimes laws to allow for a withdrawal of consent. And even if no rape occurred because of Way, what about considering an assault charge? The dismissal documents that he “hurt” her!

A full analysis of State v Way is required to say much more about the DA’s actions here- assuming, of course, that the victim did actually consent to begin with. As you point out, it’s very hard to believe defense attorney Smith’s contention that one can withdraw consent under the ruling of this case (which does control lower courts in NC if it’s still good law, and thus does legitimately guide prosecutorial decisions). As the dismissal memo is written, with her protesting and Sombo “continuing with rough vaginal intercourse while she continued to tell him to stop” I can’t imagine a situation where consent could be withdrawn by a person who changed his or her mind and no longer wished to participate in the sex act.

11 dee es September 30, 2010 at 1:01 pm

Thanks Roger and Cara, this is really helpful.

12 turquoise September 30, 2010 at 1:55 pm

Also, dee es, I don’t see how what happened here could be described only as some other type of sexual assault but not rape. After all, the definition of rape is unwanted sex. In order to say this wasn’t rape but some other type of assault, we’d have to say that whatever happens after initial penetration is no longer sex but something else altogether. So, only that initial moment of penetration would be considered sex, which would be…weird.

Also, when a Maryland court initially upheld the law that said it could only be rape upon initial penetration, didn’t they base their decision on another decision that relied on English common law, which only considers rape a crime because of the initial “deflowering” of a woman and considers the injured party to be the father or husband? So yeah, pretty damn scary.

13 dee es October 2, 2010 at 4:27 pm

Turquoise:

Yes, my question wasn’t about what the court *should* consider rape, but what it actually does consider rape. I agree that the common law “de-flowering” definition creates a scary legal concept that seems to still carry some authority.

I guess I wasn’t clear enough in my original question, though, because what I wanted to know was whether the prosecutor had some other strategy available to her for trying the case. In other words, could there have been some form of partial justice if the prosecutor had done a better job? That was before Roger explained that the prosecutor herself wrote the decision Cara quoted! Obviously the prosecutor didn’t do a good job.

Beyond that, though, there remains a question about legal terminology skewing perspectives on justice. It seems to me, and I think this is what Bonnie was pointing out as well, that the legal lexicon for discussing sex inadequately accounts for the realities it faces. Time and again we see rape cases get muddled by questions of consent: when and how it was given, when and how it was withdrawn, whose word seems more credible in court and so on.

It seems like such discussions have little relevance to the fact, which all parties seem to agree on, that the defendant physically harmed someone. So again, my question was: what are the consequences of trying the case as sexual assault? Does that circumvent the legal morass of consent? Does it lessen the punishment somehow? Does it give us a better set of terms for understanding the violence that the victim suffered?

14 Adam October 13, 2010 at 3:45 am

Question: I came across this article from a post on RAINN, don’t get me wrong, I am all for protecting women but this seems to be blown out of proportion. Unless I’m reading my legal resources incorrectly, State vs. Way was granted a new trial by the NC Supreme Court based in part off State v. Long, 93 N.C. 542 (1885). It seems to be clear that the law states a women has the right to withdraw consent and at which point, further sexual acts are then considered forceful, therefore it is rape. At the new trial, Way was found guilty of second degree rape and sentenced to 10 years in prison. I am unfamiliar with NC law as I am in CA, but case citing something that was overturned doesn’t hold much for grounds for dismissal. It seems to be that the AG is at fault here for citing something outdated, unless of course, I am missing something, in which if I am, please explain while providing caselaws. I would say the court is at fault here but it was the prosecution (plaintiff) which dismissed the case, therefore, whatever reason they say is what the court will accept, whether it is valid or not. If it was the defendant who motions for a dismissal, then they must prove it. People should be attacking the Attorney General, not the State of North Carolina

15 Adam October 13, 2010 at 3:47 am

My bad, I mean the District Attorney, not Attorney General, sorry

16 Adam October 13, 2010 at 4:17 am

Roger, Cara, and everyone else interested,

here’s the case you can use in legal searches,

State v. Way, 297 N.C. 293

In overview, I’m not shocked at the initial ruling, which Donnie Leon Way was found not guilty. A charity I support greatly, The Innocence Project, fights to exonerate innocent people who were wrongfully accused, and if you read some of the cases, you wouldn’t be shocked with jury verdicts like this either. However, it is shocking that the DA was the one who dismissed this case, something extremely wrong with this picture.

State vs. Way for those who do not have access to legal sites, was about a man, Donnie Leon Way who forced the defendant, Beverley into Anal, Oral, and Vaginal sex using threats of physical violence. This happened at a party where Beverley was asked by Donnie to go upstairs with him. Beverley never consented at any point in time to any sexual act with Donnie, she only consented in going to the party with him when he invited her the day before. During Vaginal Sex, Beverley screamed about stomach pains and Donnie stopped, got her friend Patricia from downstairs and all 3 went to the hospital. Beverley didn’t tell the doctor the truth because Donnie was in the room with them, but in the medical report, the Doctor noted physical trauma to the vagina as well as bruises on her cheek bone.

On appeal, the NC Supreme Court granted a new trial to defendant in which the result was Donnie Leon Way was found guilty of second degree rape and sentenced to 10 years in prison.

So again, back to my original post (forgive me as I didn’t re-read it and just went with the flow), I am curious to know why people are attacking the state of North Carolina rather than the DA. Again, the DA dismissed this case, EXTREMELY suspicious since he incorrectly cited State vs. Way. But the courts have no power to deny a prosecution a dismissal because it would be forcing the prosecution to fight a case they no longer want to fight, and of course the defense isn’t going to fight it because they don’t want to go to trial, so why would they respond to the dismissal?

So again, I feel unless my reading and interpretation of the law is incorrect, this whole movement is misguided and people should be revolting against the DA, not the state of North Carolina because the law is clear that a woman can withdraw consent at any time.

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