Whether “No” Means “No” in North Carolina

Attention has fallen on North Carolina for a 1979 court decision on withdrawal of consent during sexual intercourse. In State v. Way, 297 N.C. 293 (1979), the state supreme court held under North Carolina’s then-existing rape statutes that if a woman consents to sexual intercourse and in the middle of the act changes her mind, the defendant is not guilty of rape for continuing to engage in intercourse with her. The decision has drawn fierce criticism from the public and in legal circles. The criticism intensified after the General Assembly did not act on a bill introduced this session, Senate Bill 553, which would have permitted withdrawal of consent after intercourse begins consensually. People have asked me whether the apparent holding in Way is still the law in North Carolina. Is it true that a man would not be guilty of rape if he forcibly continued to have sexual intercourse with a woman after she withdrew consent? In my view, that may not be the law in North Carolina. Here are my reasons, discussed in more detail below. First, Way stated that a man is not guilty of rape if a woman withdraws consent after sexual intercourse begins and the man continues to have intercourse with her; the court did not specifically hold that a man would not be guilty of rape if he forcibly continued to have intercourse with her after withdrawal of consent. Second, shortly after Way was decided, new and substantially different rape and sex offense statutes took [...]