North Carolina is the only state in the country in which a man may not be charged with rape if he continues intercourse after his partner withdraws consent. This unfortunate loophole was created by the North Carolina Supreme Court in 1979 when it ruled that when “the actual penetration is accomplished with the woman’s consent, the accused is not guilty of rape” if he continues sexual contact after consent is revoked. Over the last year, two North Carolina prosecutors have declined to bring rape charges in cases in which the victim withdrew consent, citing this rule. In April, Democratic state Sen. Jeff Jackson filed SB 553 to close the loophole and clarify that sex without consent qualifies as rape under state law.
Jackson’s bill now appears to be dead. The legislative session is drawing to a close, and Republican leadership in the General Assembly refuses to bring the bill to a vote. Why? Republican Senate Leader Phil Berger told the Fayetteville Observer that he did not want to rush the bill.
“There are a lot of times that folks will come to us, and want us [to] ‘Change this law now!’ ” Berger told the Observer on Tuesday. “And I just don’t know that’s the way we need to respond to things when you’ve got a period of 30 years where apparently the law has been unchanged, and no one has brought this to anybody’s attention. At least, I’m not aware of it.”
In fact, the problem has been brought to Berger’s attention. Jackson first filed a bill to close the loophole in 2015; the General Assembly took no action on his measure, so he introduced it again this session. Once more, however, the bill stalled for rather mysterious reasons—since no state legislator has come out in opposition to it. On Thursday, Jackson’s office released a frustrated statement regarding the stalled bill:
Early this week, it looked like we had a chance to get this done. I received support from several members of the majority party. Then I was told it wouldn’t be happening and that more deliberation was needed. I genuinely have no idea why this is taking several years to accomplish. We’re talking about adding one sentence that closes an obvious and indefensible loophole in our rape law. Next year will be the third time I’ve filed this bill. I still haven’t heard any opposition to the bill, nor could I imagine any. We’re the only state in the country with this crazy loophole. I challenge anyone to explain why North Carolina should be the only state in the country where a woman can’t revoke her consent to have sex. When this comes to a vote, as it inevitably must, I still expect it to pass unanimously. It has just taken way, way too long.
The GOP leadership’s refusal to bring the bill to a vote—apparently because it requires “more deliberation”—is especially galling in light of its recent legislative chicanery. North Carolina Republicans, led by Berger, introduced and passed HB2, the state’s notorious anti-LGBTQ law, in 12 hours. When GOP legislators decided to strip power from incoming Democratic Gov. Roy Cooper, they drafted and passed a series of complex bills in a matter of days. Republicans also rushed through a bill to shrink the state appeals court in a brazen effort to prevent Cooper from replacing retiring judges.
Speaking of HB2: Berger’s apathy regarding rape is especially astonishing in light of his strong unwavering support for that law. The Senate leader repeatedly claimed that HB2 was necessary to prevent women from sexual assault, speculating that LGBTQ nondiscrimination protections would let mythical bathroom predators rape women. Republican legislators who voted for HB2 professed to share his concerns. Yet, now Berger and his party have been confronted with an actual example of a law that enables rape—and they refuse to take any action.
Thanks to a racial gerrymander that the Supreme Court has found to be unconstitutional, Republicans hold a supermajority in both houses of the state legislature. They can pass virtually anything they want. When they wish to attack the courts, the environment, protesters, immigrants, LGBTQ people, and voting rights, Republican legislators can pass a bill with remarkable celerity. When presented with a simple bill to correct a rape statute, these same Republicans plead ignorance, go silent, and allow the measure to quietly die. The North Carolina GOP has clear priorities. Protecting women isn’t one of them.