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Two loopholes in North Carolina’s sexual assault laws could close as legislators hammer out last-minute changes to three bills in a bipartisan conference committee this week.
If someone continues with sexual activity after a partner withdraws consent, it is currently a crime everywhere in the United States — except in North Carolina, thanks to a judge’s precedent-setting ruling 40 years ago.
“The General Assembly did not put this into statute,” said Skye David, an attorney for the N.C. Coalition Against Sexual Assault. “With that being said, the General Assembly has had 40 full years to change it.”
A different legal precedent from 11 years ago means that having sexual relations with people who are incapacitated through their own drinking or drug use is also not currently a crime in North Carolina.
Passage of reforms on these measures would be a stunning turnaround after they failed to receive committee hearings in previous sessions of the legislature. But evidence of movement emerged this session, including when House members unanimously backed a change in the incapacitation rule.
No previous attempts to close the two loopholes have come nearly so far, David said.
While the two precedents are not laws in North Carolina in the traditional sense, prosecutors can cite the legal precedents as a reason to not charge an alleged perpetrator. Judges and juries can also look to the precedent to inform their decisions.
Earlier this year, Carolina Public Press and nearly a dozen media partners produced the series Seeking Conviction, which investigated problems with sexual assault prosecutions in North Carolina, including the legal precedents the proposed legislation would address.
Part of this project examined court records spanning 4½ years to calculate conviction rates for sexual assault crimes. That analysis found fewer than 1 in 4 defendants charged with a sexual assault are eventually convicted of that crime or a lesser related one. In 38 of North Carolina’s counties, no convictions were recorded at all.
Legislation would patch sexual assault loopholes
N.C. Rep. Dennis Riddell, R-Alamance, is one of the leaders in a bipartisan negotiation to unite three bills dealing with sexual assault issues into one piece of legislation — Senate Bill 199 — to bring them to an up-or-down vote in both chambers — and, Riddell hopes, to the desk of Gov. Roy Cooper.
The new measure is expected to incorporate provisions from three other bills that lawmakers worked on this session, with those bills then becoming moot:
House Bill 393 calls for removing the language from existing state laws upon which the legal precedent for the incapacitation defense is based.
Senate Bill 563 would make it a crime to continue a sex act after a partner revokes consent.
House Bill 37 extends the amount of time for victims of child sex abuse have to sue their assailants. State law currently says victims have until age 21 to sue. The legislation also includes mandatory training for educators on the signs of human trafficking.
The way a child dresses may change over time to include expensive clothes. A young teen might talk about an older romantic partner. The child’s disposition may suddenly change, or the child may act out, according to Riddell.
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“The impact (of trafficking) can be very traumatic,” he said. “This will help teachers and school personnel help that child get out from under that burden that they carry.
“This is a big step for North Carolina,” Riddell said, referring to the potential passage of SB 199, combining all of these measures. “These are significant changes to existing law.”
Also leading the conference committee is N.C. Sen. Danny Britt Jr., R-Robeson, who co-sponsored SB 563, which never received a hearing in committee. While Britt did not respond to CPP in time for deadline, in previous interviews he said as a former prosecutor, he’s seen rape suspects claim a sex act started with consent. It’s a loophole that needs fixing, he said.
“I can tell you I’ve had multiple cases where that has happened,” Britt said.
“We think it’s a good idea that you should be able to revoke consent. Everyone can agree to that.”
Rep. Chaz Beasley, D-Mecklenburg, co-sponsor of HB 393, said people are hungry for change to North Carolina’s sexual assault laws.
“That we are even where we are right now is a testament to the bravery of survivors who are willing to tell their stories and advocate for change,” Beasley said.
Survivors of assault, drugging and rape testified in House committees to advance HB 393, which unanimously passed the House in April.
An element of HB 393 includes making it a crime to drug someone’s drink, even if nothing bad happens to the person as a result of drugging it. Leah McGuirk has been to Raleigh several times to advance the bill. Last year she was drugged at a Charlotte bar.
“Had it not been for the fast actions of my friends, I could have been easily sexually assaulted,” McGuirk told legislators at a committee hearing in April. She tried to file a police report, but because she had not been sexually or physically assaulted after her drink was tampered with, officers told her they couldn’t charge anyone with a crime.
Beasley said legislators from both chambers and on both sides of the aisle are negotiating in good faith to bring the new combined bill to a vote.
To be clear, Riddell said the only sticking point left is how long to allow civil suits for victims of child abuse.
In recent years, lawmakers around the nation have tried to extend the statute of limitations on civil suits for child abuse victims. The measures are largely opposed by insurance companies, the Catholic Church and Boy Scouts of America, according to USA Today.
Child sex abuse victims could sue later in life
In North Carolina, child sex abuse victims can sue their assailants until they turn 21, but the average age a victim reveals abuse as a child is 52, Riddell said. And some victims take their abuse to the grave without telling anyone.
Without a change in the law, he said, “it tilts justice in favor of the perpetrator. All they have to do is keep you quiet until you turn 21.”
Riddell’s bill proposes a statute of limitations ending at age 38 and a period of two years after the bill becomes law during which victims of any age could file suit against their assailants.
“We are desperately trying to keep that in,” Riddell said of the two-year look-back period.
However, some members of the conference committee think age 38 is too high, Riddell said. He hears weekly from people who follow the bill.
“They are finally ready as an adult to go into a courtroom and face down their accuser, adult-to-adult instead of adult-to-child victim,” he said.
“They should be given that opportunity. It’s wrong for North Carolina to deny them of that opportunity.”
What’s likely to happen next on sexual assault legislation?
Riddell expects negotiations on the legislation to wrap up sometime this week.
David, with the NCCASA, said it’s taken years for legislators to become comfortable talking about these issues.
Assault “is more of a private event, and I think our legislature is conservative.” Even when Democrats were in control, she said, they were conservative on social issues.
Typically, rape and sexual assault happen in private, and sex has long been a taboo discussion topic.
“It’s easier to ignore than have an open conversation,” David said.
At times, David speaks with friends who live elsewhere about North Carolina’s sexual assault laws and legal precedents.
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While the state has been a nationwide leader of tracking technology for rape kits or eliminating the backlog in old kits at an aggressive pace, David said the laws are a different story.
“People think North Carolina is backward or that we don’t take sexual assault seriously,” she said.
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