In December of 2019, two new laws took effect in North Carolina reforming the states sexual assault laws. These two key changes substantially altered the circumstances in which someone could be charged with rape and many other sex crimes and made more people eligible to be charged with these extremely complex and serious charges. If you find yourself in a situation in which your are being investigated or charge with a sexual related offense it is vital that you speak to an attorney right away to protect your freedom, your job, and your reputation. The skilled and experienced attorneys on Jetton and Meredith’s criminal defense team are here to help you protect everything that you have worked so hard to build from this mayhem. If you have been charged or are under investigation for a sex crime in the Greater Charlotte Area call 704.333.1114 today to schedule your free consultation.
Changes to Consent and the Term “Against a Person's Will” N.C.G.S. 14-27.20(1a)
The first change, was the addition of a new definition of the term “against a person’s will.” This new definition is applicable to all sex crimes and brings North Carolina’s law in line with the rest of the nation. Prior to the change, North Carolina’s law stated that once consent was given, it could not be revoked. North Carolina was the only State with this rule. This is no longer the case. The new definition that was added states: “against a person’s will” can be either: without consent entirely; or after consent is given and then later revoked by the other person, in a manner that would cause a reasonable person to believe consent is revoked.
What does this change?
The key change here is the ability to revoke or withdraw consent. Prior to this addition, once consent was given for a sexual act, it could not be withdrawn during the commission of the act, even if the person who gave consent changed their mind. Now under the current law, it gives people the ability to change their mind, communicate that to the other person, and withdraw or revoke their consent to engage in sexual activity.
What does this mean?
First, it means that in order for sexual activity to be considered consensual, there must be valid consent to engage in such activity from both parties throughout the entire encounter. This gives either party the ability to revoke or withdraw consent to continue the activity at any time. Under the new statute, when someone effectively withdraws or revokes consent the sexual activity must stop. Any continuation past that effective withdrawal point becomes against that person’s will, and would open the other person up to criminal liability for a potential sex crime charge.
Next, the statute deals with what withdrawal of consent means and looks like. It sets forth that in order for a withdrawal of consent to make an activity against a person’s will that it must be effectively communicated in a manner that would cause a reasonable person to believe consent is revoked. This means that in order for an activity to be deemed to be against the other person’s will, they must have done something or said something that would make a reasonable person believe they had revoked consent. This communication is very important because it protects people from being accused of a sex crime when there was no attempt to communicate or show that consent was being revoked.
It is important to know that the statute does not say, that you had to believe or understand that consent was revoked, only that a reasonable person would have understood the communication to mean that. This means that your subjective understanding of the situation is not important. What is important is the particular facts, circumstances, words used, and actions taken by the victim. For this reason, it is crucial that you speak to an attorney as soon as possible in the process because that is when your memory of these key details will be the clearest and therefore the most useful in your defense.
Changes to the Definition of Mentally Incapacitated N.C.G.S. 14-27.20(2)
The second key change coming out of the December 2019 legislation was a change to the definition of “mentally incapacitated” found in N.C.G.S. 14-27.20(2). Prior to this change, someone would not be considered mentally incapacitated if the alcohol, poison, or controlled substance that rendered them unable to either appraise the nature of his or her conduct, or resist the sexual activity involved, was taken with their consent or knowledge. This meant that people who got drunk, or became impaired on their own could not be considered mentally incapacitated for the purposes of rape charges. This is no longer the case.
What does this change?
The major change here is to the voluntary nature of the actions. Under the new law, any act that renders a person unable to appraise the nature of their actions or resist the sexual activity that is involved will suffice to make a person mentally incapacitated. This is different than the old definition which required the act be done upon the victim without their knowledge or consent. So, the old law really only protected against when someone had something slipped in their drink.
What does this mean?
This means in the past if you as a victim took the impaired substance voluntarily you could NOT be considered mentally incapacitated. Now that is changed. Even if you took the impaired substance voluntarily and with your knowledge you can be considered mentally incapacitated. The biggest impact of this change in definition is when you go out with someone and they get drunk without anyone on their own accord. Under the old definition, this situation would not have resulted in a rape accusation, without other factors such as the other person passing out or being physically helpless. Under the current law, if you have vaginal intercourse with someone who is impaired enough to not be able to resist the intercourse or appraise their own actions, you may find yourself being investigated and even charged with second-degree forceable rape, regardless of how that person became that impaired.
Issues That May Arise From These Changes
These two law reforms occurred very recent and the Court has not gotten an opportunity to examine every scenario in which they will be at issue in criminal or civil cases. However, these are some issues to be aware of that may arise from situations you are involved in:
The nature of rape prosecutions and defenses.
Rape charges and the prosecution and defense of such charges is often very complex and individual to your particular case. Often you will be charged solely based on the complaint and interview of the victim. There is often no photographic or video evidence of what occurred once the sexual activity began and therefore the nature of the prosecution becomes a “she-said, he-said” situation. Especially in trial, these kinds of cases become centered on the testimony and credibility of the victim and other witnesses.
The reasonable person standard.
As discussed above, when dealing with the revocation of consent, the law does not state that you had to understand that consent was being withdrawn, only that a reasonable person would have understood that. What does the reasonable person standard mean? It means that the actions would have been understood by the normal everyday person in the same situation who takes reasonable actions and precautions to mean that consent was being withdrawn. This is where the circumstances, and particular details of your case and the interactions between you and the victim become very important, because they will form the basis of the understanding used by the jury in your case to determine if a reasonable person would have come to that conclusion. It is imperative that you speak with an experienced and knowledgeable attorney as soon as you become aware of the investigation or charges against you because your memory of the events and the particular details of the events will be the clearest earlier in the process.
What happens when both parties are impaired to a sufficient level?
It is possible under North Carolina law as it is now written for one of the parties to be charged with rape, even if both parties were impaired. However, because under current case law rape is a specific intent crime, your impairment may be a defense.
These changes to North Carolina’s sex crimes are very recent, and this is an area of the law that is constantly changing. Therefore, it is important to have an attorney on your side who not only knows the law but also knows the most recent changes to the law. If you have been charged with a sex crime or are under investigation for a sex crime, it is imperative that you speak to a skilled attorney right away. The criminal defense team at Jetton and Meredith have decades of experience and have represented hundreds of people charged with sex crimes, they are constantly involved with and aware of changes to the law and potential changes to the law. If you have been charged with a sex crime or are currently under investigation for a sex crime contact Jetton and Meredith’s criminal defense team today at 704.333.1114 to schedule your free consultation.