The North Carolina General Assembly meets in the State Legislative Building in Raleigh, seen here in Feb. 2018. Frank Taylor / Carolina Public Press

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State House and Senate leaders say two proposals to close loopholes in North Carolina’s sexual assault laws are very much alive, despite rhetoric from another legislator claiming the top Republicans have been blocking these efforts.

North Carolina is the only state in the country where once you have consent to start a sex act, it’s not a crime to continue after the partner tells you to stop.

It is also not considered rape in North Carolina to have sex with an incapacitated person who caused that incapacitation through drinking or drug use.

And though a state Senate bill died before it got a hearing, and another that received a unanimous vote in the House is still awaiting committee action in the Senate, recent comments to reporters statewide are showing new life in legislation that some have said was all but dead.

“I thought I detected a heartbeat,” N.C. Senate President Pro Tem Phil Berger told News & Observer statehouse reporter Lauren Horsch on Tuesday when asked about one of the bills.

 Sexual relations with an incapacitated partner

Berger, R-Rockingham, told Raleigh TV station WRAL last month that legislators had not dropped the effort to close the incapacitation loophole.

In fact, Berger told WRAL, House Speaker Tim Moore, R-Cleveland, had identified it as a House priority.

“We’re going to take another look at that bill,” Berger told WRAL.

Earlier this week, Berger renewed that pledge in a conversation with a News & Observer reporter, saying he hoped there was a path for the bill.

He’s talking about House Bill 393, which unanimously passed the state House in April. Its passage would overturn a more than decade-old legal precedent under which an assailant cannot be charged with rape if the victim was incapacitated through drinking or drug use.

Sexual relations after partner revokes consent

Prosecutors at times have declined to pursue charges against assailants who continued to have sex after their partners told them to stop. That decision is at times made with an eye toward a 40-year-old legal precedent in the case State v. Way.

House Speaker Moore told Charlotte radio station WFAE earlier this month that he supports a change to the state’s withdrawal-of-consent precedent. He said there were some “very egregious examples” where someone had given consent and the act continued even after telling the partner to stop.

“And I would submit that’s rape,” Moore said. “If someone withdraws their consent for sexual conduct, then that is rape, and it needs to be prosecuted in such a way.”

Similarly, Berger said the issue isn’t dead in an interview this week with the News & Observer.

The vote totals on April 29 show that state House members passed HB 393 unanimously. Kate Martin / Carolina Public Press

Finding the right legislative language

It has taken time to craft language that legislators can agree on, said Skye David, an attorney for the N.C. Coalition Against Sexual Assault and a lobbyist.

“We came to a comfortable spot where everyone feels this will attain the goals we are looking for,” she told CPP in a phone interview on Thursday.

Legislators are considering revised language, which says, “The withdrawal of consent must be clear and unequivocal, and must be communicated in a way that a reasonable person would understand to constitute the withdrawal of consent.”

State Sen. Jeff Jackson, D-Mecklenburg, has proposed legislation to criminalize rape after withdrawal of consent three other times. This year, his fourth try, the bill didn’t get a committee hearing.

Jackson told WFAE that he thought the bill was dead and later tweeted his thoughts on why the legislation had stalled: “Why? Because some deeply conservative legislators are actually opposed to giving women the right. Unreal, There is major GOP opposition to extending this very basic right to women in our state.”

Asked about those comments Wednesday, Jackson told CPP that Moore’s support for the proposal surprised him.

 “I said the bill is now dead because I was informed the bill was dead by multiple sources,” he told CPP via phone. Though he has been left out of the loop on the bill’s progress, “I’m fine with it as long as we end up getting a bill passed.”


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Kate Martin

Kate Martin is lead investigative reporter for Carolina Public Press. Email her at kmartin@carolinapublicpress.org.

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