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Questions of consent can make NC sexual assault cases tough to prosecute

Monika Johnson Hostler: Looking at the low prosecution numbers in NC

Monika Johnson Hostler, executive director for the N.C. Coalition Against Sexual Assault talks how low the prosecution rates on sexual assault are so low in North Carolina.
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Monika Johnson Hostler, executive director for the N.C. Coalition Against Sexual Assault talks how low the prosecution rates on sexual assault are so low in North Carolina.

Even if a rape case makes it to trial, it can still be tough to convince juries — especially if the perpetrator says it wasn’t a crime at all, but a consensual act.

In fact, Cumberland District Attorney Billy West said he believes that “getting a conviction in a sex offense case from a jury of 12 may be the most difficult one to get in our system.”

It’s because most sex offense cases involve people who know each other, West said. They may have had a prior relationship or were on a date or together at a party, he said, and sometimes the evidence boils down to the victim’s word against the defendant’s.

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Donyetta Gilmer, sexual assault and domestic violence advocate, consoles a sexual assault victim during counseling. Robert C. Reed Hickory Daily Record

It can be easier, West said, to obtain a conviction if the defendant is a stranger or there otherwise is no plausible noncriminal reason for the defendant to have had sexual contact with the victim.

This problem exists in the criminal justice system nationwide. It’s heightened in North Carolina because of a 40-year-old legal precedent that says a person cannot revoke consent to a sex act. Continuing after being asked to stop does not constitute a crime.

North Carolina is the only state in the nation where this is true, according to Skye David, staff attorney for the N.C. Coalition Against Sexual Assault.

While state law defines sex with an incapacitated person as rape, court precedent says those laws don’t apply if the person caused the incapacitation through drinking or drug use.

That could change if a bill proposed in the passes through the legislative process.

These legal complications make it difficult for prosecutors to get convictions on many sexual assault cases in which consent is disputed.

This is the fourth in a four-part investigative series, Seeking Conviction, examining the issue of sexual assault prosecutions and convictions in North Carolina, from a team of 11 media partners across the state including Carolina Public Press, The Fayetteville Observer; The (Durham) Herald-Sun, the Hickory Daily Record, The (Raleigh) News & Observer, the (Greensboro) News & Record, North Carolina Health News, the Winston-Salem Journal, WLOS News 13, WRAL-TV and WUNC North Carolina Public Radio.

Read Part 1. Sex assaults and prosecutions.

Read Part 2. A county-by-county look at sex assaults.

Read Part 3. “Rape kits” and evidence.

Victim blaming and consent

Regardless of the rules, public attitudes about consent can lead to blaming sexual assault survivors. When these attitudes are prevalent among jury members, prosecutors face an uphill battle, even on cases that otherwise seem clear-cut. In Macon County several years ago, a 16-year-old high school student disappeared during a party.

“She was brutally raped,” said Ashley Welch, who is district attorney over seven southwestern counties. The teen made a report immediately and made the long trip to Asheville to have a Sexual Assault Nurse Examiner collect the evidence from her body, now a crime scene.

Welch wanted to prosecute the boy accused in the case. She asked the grand jury to review the details in the case and grant probable cause to proceed to trial.

The first time the grand jury turned down charges, Welch said, she sat down with the girl and her mother.

“I didn’t see it coming,” Welch said. “That had never happened to me before. I was shocked. I told them I was going to try again, and not to worry.

“And then it happened again,” she said.

The third time, Welch said she just cried with them and told them how sorry she was.

“I sent it to a grand jury three times, and they wouldn’t give me (an indictment),” Welch said. “She was so victimized and she was in high school.

“What the grand jury said is, it was her fault,” Welch said. “His story from the get-go was that it was consensual.

“I couldn’t get a grand jury to give her probable cause, because she had gotten drunk at a party,” Welch said. “The last time I checked, that doesn’t mean you deserve to get raped.”

Welch thought she had all the hallmarks of a solid case: The girl reported it immediately. There were injuries and her clothes from the night of the incident, Welch said, noting that the girl’s testimony was consistent.

“I had other people at the party who talked in detail about how she disappeared with the person and how she acted immediately after. Crying. Hurt. Devastated. Scared — and I still couldn’t get a grand jury to let me prosecute him,” Welch paused. “I’ll never forget that.”

Monika Johnson Hostler, executive director for the N.C. Coalition Against Sexual Assault on how society thinks of victims of sexual assault.

Even when a grand jury indicts, if consent is in question during a rape trial some jurors will blame the victim for what happened, said Lt. John Somerindyke, who heads the special victims unit at the Fayetteville Police Department.

“All a defense lawyer has to do is have one juror buy into victim-blaming, and the case is gone,” he said.

But Angelica Wind, executive director of Our VOICE, a rape crisis center in Asheville, believes an alleged perpetrator who claims consent should not be an automatic loss.

“The sense is that, perhaps it’s not a winnable case because it’s ‘he said, she said,’” is wrong, Wind said. “What that means is bringing in more expert witnesses to court to talk about trauma and what that looks like.”

Despite the challenges of investigating a case involving disputed consent, Somerindyke said his agency is willing to take a chance if the victim wants to pursue justice.

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ROBERT C. REED/HICKORY DAILY RECORD: Donyetta Gilmer, sexual assault and domestic violence advocate, holds the hands of a sexual assault victim during a counseling session. Robert C. Reed Hickory Daily Record

“I can’t speak for every agency in the state, but I feel like we are a little more proactive with our investigations and are willing to take a chance if the victim is willing to move forward with the court process, and put her hand on the Bible and testify in court,” Somerindyke said.

“If we have a good solid investigation … we aren’t going to worry about what the DA is or isn’t going to do, or what a jury is or isn’t going to do.”

Victim-blaming isn’t just an impediment when it comes from juries. Survivors can experience social victim-blaming that discourages them from pressing charges or testifying.

People bring up their past relationships and ask for details about intimate partners, said Sgt. Stephanie Vest with the Forsyth County Sheriff’s Office.

“Some opt not to go forward because they don’t want to be labeled in their peer groups, they don’t want information to get out, and they don’t want others to think, ‘If I hadn’t worn that dress ...’ They don’t want to be drug through the trenches,” she said.

Consent ‘under the influence’

Some of the victim-blaming runs counter to both the law and logic, noted Donna Miller, executive director of Esther’s House, a rape crisis center in Stanly County.

“You’ve still got that mentality, if (the rape survivor was) drinking or doing drugs, then they’re not credible,” Miller said. “But the general statute says, if they’re under the influence, they cannot give consent. So where is that line?”

However, that line in many cases may be interpreted in light of the legal precedent drawn in the 2008 N.C. Court of Appeals decision, State v. Haddock, which has made prosecuting second-degree rape and second-degree sex offense more complicated, experts said.

Prosecutors can prove second-degree rape and second-degree sex offense two ways: by force and against a person’s will, or against a person who is mentally disabled, mentally incapacitated or physically incapacitated.

The court ruled that a person could not be considered “mentally incapacitated” when the person was responsible for the incapacitation, according to Amber Lueken Barwick, a domestic and sexual violence resource prosecutor for the N.C. Conference of District Attorneys.

Forsyth County Assistant District Attorney Elizabeth Dresel said that means prosecutors can’t show mental incapacitation if the person who was assaulted willingly drank alcohol and became impaired as a result, although prosecutors could still pursue charges if there is other evidence the sex act was forced and was without consent.

Vest, the Forsyth County Sheriff’s Office sergeant, echoed Dresel’s statement that a case that involves alcohol may be harder to prosecute but said sexual assault survivors should still speak out.

“An inebriated account is sometimes skewed,” Vest said. “But we have to consider, ‘no means no,’ no matter how much someone’s had to drink. And it’s a huge factor in why people don’t immediately report, especially if they are under (legal drinking) age. They have to explain to their parents where they’ve been, that they were drinking and what happened.”

Prosecutors may accept the challenge and move forward with a jury trial in an alcohol-related case, especially if the accuser is eager.

Ted Bell, the district attorney in McDowell and Rutherford counties, recalled one such case.

“It was a consent case, based on whether or not the defendant was intoxicated and whether or not she gave consent,” Bell said. “There were text messages in that case that ... appeared to be sexually suggestive. It could be read either way. The defense portrayed them as sexually suggestive, and the jury ultimately came back ‘not guilty.’”

Withdrawn consent in North Carolina

Some cases are more difficult than others, especially if the initial act began with consent.

In 1979, the Supreme Court of North Carolina ruled that once a sex act begins, a woman cannot withdraw her consent.

The court wrote: “If the 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.”

DA Welch called it a “troubling” precedent.

“I feel like you are able to withdraw consent at any time,” Welch said. “If you have consented to one act, to me it doesn’t mean that act can keep going as long as necessary.”

However, again it comes back to juries and how they view consent.

“You will see somebody that is consenting to a particular act, and all of a sudden it gets rougher than what they bargained for, or they change their mind, and we’re stuck,” Welch said. “If it goes from one sex act to another, I don’t feel like that law applies, but you still have to deal with that issue in front of a jury, and that’s going to be very hard to convict.”

Wind said she’s seen a few cases where a woman consents to sex with a condom, and then the partner in mid-act removes it. It’s called “stealthing,” but under that 1979 ruling, it’s legal to continue having sex even if the other person tells you to stop — as long as there was consent for the initial penetration.

Monika Johnson Hostler, executive director for N.C. Coalition Against Sexual Assault, started to keep a notebook about 10 years ago when she heard from women who tried to revoke consent. They are stymied by prosecutors who feel a jury won’t convict because of that 40-year-old ruling.

“A lot of these are generally younger women, teens or college-aged,” she said. “They are frustrated.”

Two cases she’s heard recently are very similar. Prosecutors told both there’s nothing they can do.

Even though the women did not consent to sex, “the offender felt like consenting to fooling around was consenting to sex,” Johnson Hostler said.

Although the precedent came from a one-time court ruling that has not been tested recently, some North Carolina lawmakers have attempted to offer a legislative solution. Mecklenburg County Democrats Rep. Chaz Beasley and Sen. Jeff Jackson proposed a bill in 2017 to make continued sex after revocation of consent a crime.

The proposal read, “A defendant who continues the act of vaginal intercourse after consent is withdrawn is deemed to have committed the act of vaginal intercourse by force and against the will of the other person.”

But the General Assembly never acted on the measure.

While not specifically addressing whether revoked consent will be included, Rep. Beasley said last week that he’s working on a proposal that will address several sexual assault issues.

Tuesday afternoon, Reps. Beasley, Jay Adams, R-Catawba; Gale Adcock, D-Wake; and James Boles Jr., R-Moore, filed a bill proposing changes to existing law on incapacitation. A 2008 legal precedent interprets language in that law to mean raping someone who is mentally incapacitated is illegal only when victims didn’t voluntarily cause their own incapacitation by drinking or drug use.

House Bill 393 would remove language from the existing state statute on which that legal precedent is based. Other parts of the measure would make it a felony to drug a person’s drink, broaden the definition of “caretaker” in the juvenile code, and remove the word “forcible” from several of the statutes that define rape crimes.

As of Wednesday evening, the bill had another 56 cosponsors.

Johnson Hostler called the proposed legislation “a great first step for North Carolina” during a Wednesday afternoon press conference in Raleigh.

A reporter asked why revocation of consent wasn’t included in the bill. Beasley said it was something lawmakers discussed.

“My understanding is that there very well may be more movement on that issue as well,” Beasley said at the press conference. “Stay tuned there.”

Beasley also fielded a question about Carolina Public Press’s analysis of statewide court data, published Monday, which found that more than 75 percent of those arrested for serious sexual assault offenses are ultimately not convicted of a sexual assault charge.

“Do you think your legislation will help with that?” the person asked.

“I do,” Beasley said. “There are some folks who don’t feel comfortable sharing their stories because they are concerned that nothing’s being done. We definitely want to provide a space where, if people go to law enforcement or they go to DSS, or they go to someone whose job it is to address these problems, … they will be heard and they will be remedied.”

Sexual violence is a social and public health problem in the U.S. According to the National Intimate Partner and Sexual Violence Survey, nearly 1 in 2 women & 1 in 5 men experienced sexual violence victimization other than rape in their lives.

Attitudes toward rape

If issues like North Carolina’s rules on consent lead to a public perception that rapists will go unpunished in the state, it could impact survivors’ decisions about whether to contact police.

Johnson Hostler said communities that do not prosecute rapists may see a drop in these reports.

“In small communities the word gets out. ‘I don’t need to report this because nobody is going to do anything,’” she said. “It only takes one person in a small community to say, ‘If you are sexually assaulted, nothing’s going to happen.’

“That may or may not be true. But for survivors that’s what they believe.”

DA Bell, from McDowell and Rutherford counties, described wanting justice for survivors in difficult sexual cases, especially those hinging on consent.

“Justice, to me, is trying to get as close as I can to what the victim feels they need, to be able to get past this,” he said. “Sometimes, justice is them getting on the witness stand and telling, to people who are wanting to listen to them, what happened. And sometimes, with some victims, that’s all they want. They want to get up and say this is what he did to me and so sometimes for that person just testifying is justice.

“Sometimes justice is the defendant being held responsible to some level that the victim is satisfied. Yes, they’re going to be held responsible for their crime.”

But prosecutors also feel personally invested in these cases.

“For me as a prosecutor, when I try somebody for one of these crimes and the jury comes back not guilty, in my mind they are getting away with it,” Bell said.

Contributors to this article were Kate Martin, Frank Taylor and Imari Scarbrough of Carolina Public Press; Michael Hewlett and Sarah Newell of the Winston-Salem Journal, Paul Woolverton of The Fayetteville Observer and Jennifer Emert of WLOS. Illustration by Mariano Santillan of Carolina Public Press. Graphics by Cassandra Sherrill of the Winston-Salem Journal and Jason deBruyn of WUNC North Carolina Public Radio.

About the collaboration: Eleven news organizations across North Carolina participated in the reporting of this series, which was coordinated by Carolina Public Press. Those organizations also include: The (Raleigh) News & Observer, The (Durham) Herald-Sun, The Fayetteville Observer, the Hickory Daily Record, the (Greensboro) News & Record, North Carolina Health News, the Winston-Salem Journal, WLOS News 13, WRAL-TV and WUNC North Carolina Public Radio.

To find all the reporting done in this project, visit www.carolinapublicpress.org.

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