When a crime is committed against us, the assumption is that we will be able to hold the perpetrator accountable to the fullest extent of the law. But, what if we saw the same crime committed against other people, yet perpetrators of the crime were rarely convicted and no justice was served? What if we saw survivors of the same crime treated poorly by the justice system, being shamed, blamed, and disbelieved by law enforcement officers who recorded their reports? What if the crime committed against us wasn’t even legally considered to be a crime?
This is the reality for many survivors of sexual assault and rape. Sexual violence is a serious public health problem in the United States, yet reporting and conviction rates are lower than any other crime. The low rate of conviction, combined with societal disbelief of survivors, and victim shaming and blaming, discourages survivors from reporting sexual crimes committed against them. While there are many reasons a survivor may choose to not report a crime, a commonly cited reason is that they believe the police will not doing anything to help their case. Unfortunately, this belief is based in reality. In some cases, police must tell the survivor that the rape or sexual assault committed against them does not meet the legal criteria of a crime.
The #MeToo era brought the conversation about sexual violence into the public eye and encouraged more survivors to come forward and report their cases. Yet, with our current laws in North Carolina, we cannot ensure that anything will be done about these reports. How do we further encourage survivors to report crimes, without risk of re-traumatization, when the conviction rate for rape and sexual assault in North Carolina is less than one in four? Or, when legislation does not recognize survivors’ experiences as rape or sexual assault? Unfortunately, not all survivors of sexual violence are protected under North Carolina’s general statutes. The general statutes are not adequate to protect survivors of sexual violence and they increase the risk of re-traumatizing survivors since a successful court case is unlikely.
For example, to bring charges against someone for first-degree forcible rape, three criteria must be met: 1) vaginal intercourse; 2) by force and against the will of the other person; and 3) one of the following: a) threatens use or displays a dangerous or deadly weapon, b) personal injury is inflicted upon the victim, or c) the offense is aided and abetted by one or more persons.
Consider the situation of a man in a same-sex relationship who is anally raped by his partner. According to North Carolina law, this does not fulfill the legal definition of rape because it is not “vaginal intercourse.” The survivor would not be able to bring the charge of rape against his perpetrator in a court of law. This disconnect in North Carolina law can be re-traumatizing for survivors, as law enforcement would have to tell the survivor that their experience was not rape. Similarly, women in same-sex relationships or a man who was raped by a woman would not be able to bring the charge of rape against their perpetrator. While the option exists to pursue the charge of a first-degree forcible sexual offense, this may not carry the same weight as a rape charge and may not seem like justice for the survivor.
Consider the situation of a woman who was raped by a male sexual partner. In this situation, she did not give consent and did not struggle or fight back because she was scared and in shock. Freezing is a common response to a traumatic situation. However, if there was no additional personal injury inflicted upon the survivor beyond the effects of the rape, no threat or use of a deadly weapon, and no additional people involved in the rape, the survivor would not be able to pursue a charge of first-degree forcible rape. In a similar situation involving sexual assault other than vaginal penetration, similar issues arise in pursuing the charge of a first-degree forcible sexual offense. The survivor may be able to pursue a lesser charge or misdemeanor, but this would not hold the same weight as a first-degree rape or sexual offense charge and may not seem like justice to the survivor.
Furthermore, North Carolina is the only state in the country where a person cannot legally revoke consent after a sexual act has begun. Imagine that two people are engaging in sexual activity, and the dynamic of sex changes to become violent, rough, or painful. If one person withdraws their consent and clearly voices that they wish for that sexual act to stop, but the other person does not heed their withdrawal of consent, they cannot be charged with rape, despite the traumatic impact this could have on the survivor.
To bring charges against someone for second-degree forcible rape, three criteria must be met: 1) vaginal intercourse; 2) by force and against the will of the other person; or 3) against someone who has a mental disability or who is mentally incapacitated or physically helpless. If someone is mentally incapacitated voluntarily, say by alcohol or other drugs, but still conscious and not physically helpless, they cannot bring a charge of second-degree rape against the perpetrator, because case law does not consider voluntary consumption of alcohol or drugs to lead to mental incapacitation.
OCRCC’s understanding of sexual violence differs from what is defined by the law. The OCRCC uses a consent-based definition of sexual violence, defining it as sexual activity, by force, without consent. This definition is intentionally broad so that it captures the multitude of experiences our clients come to OCRCC to talk about. Consent is present if and only if it is clear and enthusiastic, free of coercion and manipulation, each and every time. An individual’s personal experience is their truth, and the traumatic effects of rape and sexual violence are very real, whether or not it fits within North Carolina’s legal definitions of forcible rape.
Amending the general statutes in North Carolina to include a broader definition of rape is imperative if we wish to become a community that supports and protects survivors of sexual violence. Opening pathways for survivors to pursue justice in criminal court are essential to hold perpetrators accountable and make the shift to a society that does not tolerate rape and other forms of sexual violence.
Abby Cooper is OCRCC’s Policy Fellow doing important work on the ground.