North Carolina's rape law loophole was only closed because the women it harmed spoke out

A law that never should have existed meant that women had to repeatedly tell lawmakers what it means for the state to take away your right to say no.
Image: A shadow of a couple in New Delhi.
At a time when the national conversation around consent revolves around whether it's worth it for women to come forward, the victory in North Carolina presents a compelling case.Altaf Qadri / AP file
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By Lucia Graves

It was referred to by some as a rapist's "right to finish" and it never should have been the law in North Carolina for a day, let alone for 40 years. But Thursday, the state finally did away with that unbelievably regressive loophole in its sexual assault law, which said a person could not legally withdraw their consent for sex once it's underway — even if the other person turned violent and abusive.

Such loopholes were not abstract legal points: Men were acquitted, had their charges reduced or were never brought to court because the courts recognized their "rights" rather than those of the person saying no.

I spoke directly with women whose allegations match all three of those scenarios.

One of them is Aaliyah Palmer, 21, who for years had been explaining to the media and the justice system how she'd agreed to have sex with a man she met at a party, but asked him to stop after he became violent during the act, even tearing out chunks of her hair. He didn't.

She thought it was "common sense" that what happened to her was illegal. But upon immediately reporting it to police, she discovered the incident wasn't considered rape in North Carolina since she had initially consented to having sex. It didn't matter that all of it — his violence, her withdrawal of consent, her distress — was reportedly captured on video by a group of men outside the bathroom where the assault occurred.

The law made an outlier of North Carolina — which was also the last state in the country to outlaw marital rape in 1993. And it wasn't the only absurdly evil consent loophole that had remained on the book until last week: Another held that it was perfectly permissible to have sex with an incapacitated person, if that person can be said to be responsible for their own state of incapacitation.

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The loopholes were created through court rulings, and not through legislation — but the Legislature was slow to close them. The so-called "right to finish" had been around since 1979, and the incapacitation law since 2008.

They hadn't persisted due to inertia, however. State Sen. Jeff Jackson introduced legislation to end the loopholes four times over several years before something finally passed Oct. 31. No lawmakers ever admitted to supporting the "right to finish," but time after time, his bills would not be brought up for a vote or language to close the loopholes would quietly be stripped from bills in which it had been included.

Behind the scenes, the consensus is that resistance to change came from the evangelical community, which has a strong hold on North Carolina's politics. An evangelical pastor I spoke to in the state, who asked not to be named, told me that it wouldn't shock him to learn that religious conservatives were simply supporting the perceived party line.

But the larger reason he believes the loopholes persisted was because of a hesitation within the faith community to talk about the reality of consent because "it's during a sex act. If you repress that and call it something secret and shameful, to talk about it with any kind of specificity is just kind of taboo."

But survivors kept talking about it. And advocates kept channeling their voices. And the media kept collecting and amplifying them. "If it weren't for those stories, this would not have passed. Full stop," Jackson said. "It was not an inside-the-building strategy that prevailed. It was an outside-the-building strategy."

"We've really had to do a lot of education," Skye David, a staff attorney for the North Carolina Coalition Against Sexual Assault, told me. "Especially when you're talking about an older generation of lawmakers, nobody wants to talk about it," she added.

North Carolina's consent rules became a national news story in 2017, after a piece in The Fayetteville Observer went viral. But it was less the attention from national media or social media fire that moved the story forward than local reporting and reporters, who banded together to form a statewide media collaboration investigating the state's abysmal record on sexual assault and uncovering shocking statistics, such as the fact that in 33 of the state's counties there had been no rape convictions at all in the last four years.

At a time when so much of the national conversation around consent revolves around whether it's worth it for women to come forward, the legal victory — powered by the women of North Carolina and lifted up by local media — presents a compelling case in the affirmative.

One woman I interviewed said that when her drunken ex-husband showed up at her apartment demanding sex, she initially consented because she feared for her safety — which is technically coercion. Thanks to the loophole, his second-degree rape charge was reduced to a misdemeanor assault, and he served just 10 months in jail.

Another woman I spoke to, Jasmine Madjlessi, got her ex-boyfriend dismissed from their college for his alleged nonconsensual violent sex acts, but when she went to police about it, she said she was told what happened to her couldn't be prosecuted because she'd consented to being with him in the first place, and continued dating him.

"One of the things we heard was, 'I don't think this is a real thing that is happening,'" said the NCCASA's David about her organization's decades-long fight to eliminate the loopholes. "I know that's not true and now these legislators know that's not true too, because they heard personal stories."

This sort of storytelling has a long history in feminist circles, from the socialist-feminist demonstrators of the 1960s who told the world about their abortions, and in doing so helped pave the way to legal abortion, to the women stepping forward now as part of the #MeToo movement. And now, the women of North Carolina have made history by telling the stories that only they could — and which hopefully the women after them will never have to tell again.