On the evening of May 16, 1977, Beverly Hester was assaulted.
But the North Carolina Supreme Court declared that under the law, it wasn’t rape if Hester told the man to stop after – not before – sex began.
Hester testified in court that the man who assaulted her, Donnie Leon Way, threatened to beat her if she didn’t have sex with him. According to a summary included in the N.C. Supreme Court Decision, State v. Way, Hester said Way asked her out on a date. They went with another couple to a friend’s apartment, and Way asked Hester to go upstairs “because he had something to show her.”
She went with him to a bedroom upstairs. He shut the door. Then he tried to take off her pants. She said no. But Way wouldn’t stop.
He told her that he would beat her if she didn’t take off her clothes and have sex with him, she said. When she tried to leave, he allegedly hit her in the face. She said she took off her clothes because she was scared of him.
Hester told the court she tried to call for help, but the music was too loud. She said that Way told her her “head would be through the wall” before her friend could get to her. And then he threatened to hit her again, she said. He told her he would kill her. She said she begged him to stop.
Way was convicted of second-degree rape, because the judge told the jury that a woman could revoke her consent. But the N.C. Supreme Court disagreed, upholding a state law that it wasn’t rape if a woman consented at any time, even if she said no after intercourse began. Way’s rape conviction was thrown out, and he was given a new trial.
Ever since that 1979 case, North Carolina has said that once a woman says yes to sex, she can’t change her mind once it’s started. The State v. Way case set a precedent – ruling that a woman cannot revoke consent after intercourse begins, meaning that even if a woman said “no,” the intercourse would not be ruled rape.
The Supreme Court ruled that “if actual penetration is accomplished with the woman’s consent, the accused is not guilty of rape, although he may be guilty of another crime because of his subsequent actions.”
Because of the 38-year-old ruling, women in North Carolina who allegedly agree to sex but change their minds or say “no” during intercourse aren’t protected by laws against rape.
State Sen. Jeff Jackson of Mecklenburg County thinks that’s absurd.
“Legislators are hearing more and more about women who have been raped and are being denied justice because of this crazy loophole,” Jackson told The Fayetteville Observer. “North Carolina is the only state in U.S. where no doesn’t mean no.”
And Hester’s case in 1977 is far from the only example. Women across North Carolina have been left with little recourse after rape or assault, including Aaliyah Palmer, 19, who allegedly agreed to sex with a man at a party, but changed her mind when he turned violent.
“If I tell you no and you kept going, that’s rape,” Palmer told The Fayetteville Observer.
Amy Guy, of Wake County, told WRAL that her estranged husband showed up drunk to her apartment in December, demanding sex.
“Since he was getting angry, I figured it would be better to go ahead and agree to the sex because I figured that was the safer thing for me to do,” she said.
But he turned violent, and wouldn’t stop even though she begged him to.
Her estranged husband, Jonathan Wayne Guy, initially was charged with second-degree rape, but because of the Supreme Court decision in State v. Way, the charges were lowered to misdemeanor assault on a female. Guy pleaded guilty and is serving a 10-month sentence.
“I was devastated,” Amy Guy told WRAL. “I didn't understand how that could be because I knew I had been raped. I don't understand how the law can say that I wasn't.”
State law does not define consent or require either party to procure it prior to sexual activity. In North Carolina, first-degree rape must be vaginal intercourse by force with the threat or reality of violence, indicating that an encounter must be violent in some way before it would be considered first-degree rape in North Carolina. The law does not account for rape of men or boys.
Jackson is sponsoring Senate Bill 553, which would make it a crime to continue intercourse after a woman revokes consent.
The “Revoke Consent for Intercourse” bill would amend current law so that “a person who continues to engage in intercourse after consent is withdrawn is deemed to have committed the act of intercourse by force and against the will of the other person.”
The law specifically mentions the withdrawal of consent for vaginal intercourse. It would make it a crime to have sex with a woman after she has revoked consent, though it makes no mention of protections for men who revoke consent.
The bill now rests in the Senate’s Rules Committee, where Jackson said it likely will be dead for the remainder of the two-year legislative session.
Jackson filed a similar bill with two Republican co-sponsors in 2015.
“There’s no reason for this to be partisan,” Jackson told The Fayetteville Observer. “It’s about doing what’s obviously right.”
While North Carolina may be the only state where women explicitly can’t withdraw consent after sexual intercourse has begun, most other states see this as a gray area, according to a Broadly report. Only South Dakota, Connecticut, California, Illinois, Maine, Maryland, Kansas and Minnesota affirmatively recognize that consent can be withdrawn at any time during sex; Illinois is the only state that’s made it law.
For information on North Carolina rape crisis centers or to find one in your area, go to www.nccasa.org/need-help/nc-rape-crisis-centers.