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By Rose Hoban
On college campuses, on a Saturday night, it wouldn’t be surprising to see young men and women who’ve had too many drinks, enough to be considered “incapacitated.”
But in North Carolina, if that student were then raped, the number of drinks she had would prevent her from being able to prosecute her assailant on charges of second-degree rape – according to the letter of the law.
“If someone is in a mentally incapacitated state, they’re in a mentally incapacitated state,” said Rep. Chaz Beasley (D-Charlotte), who introduced legislation this week that would change this limitation. “They’re in no position to consent… so if something happens to them, we want to make sure they get justice for that.”
That change to the state’s sexual assault laws is part of a handful of small tweaks to North Carolina law that could impact how sexual assaults are defined and prosecuted, and whether those prosecutions can result in a conviction.
Too much punch at the frat party
Presently, the law on sexual assault reads that mental incapacitation is defined as, “A victim who due (i) to any act committed upon the victim or (ii) a poisonous or controlled substance provided to the victim without the knowledge or consent … is rendered substantially incapable.”
The technicalities of this language were upheld in an appeals court case State v. Haddock, where the court found that those words “committed upon the victim” meant that the law “did not intend to protect those victims who were incapacitated by their own voluntary actions.”
In other words, the woman in the case could not argue that her rapist took advantage of her being too drunk to consent to sexual activity because she had lifted those drinks to her own lips voluntarily.
Beasley’s bill would change that language, with the addition of about a half dozen words.
He said that the law shouldn’t be about whether a perpetrator did “something to the victim or act upon the victim in order to get them into that mentally incapacitated state.”
“It’s more about ‘Are they in that state?’” he said. And it shouldn’t matter if the victim drank too much herself, just that a perpetrator took advantage of the circumstances.
“We want to clearly define what does mental incapacitation look like,” Beasley said.
Beyond Halloween candy
Another change in the law would be around instances when a perpetrator slips a “roofie” or a “date rape drug” into a victim’s drink. Under current law, hiding an “injurious” drug becomes illegal only if it’s done in Halloween candy or other food.
Leah McGuirk found that out the hard way in May 2018, when she went to a bar in Charlotte for a “low key night out” and bought a drink.
“I met with a couple friends at … bar in downtown Charlotte,” she told a press conference at the General Assembly on Wednesday. There, she got a single drink.
“I never left my drink unattended,” she said. “Within about 20 minutes, I began to feel lightheaded, I started to black out, and I fell on the floor.”
A friend who was there with her stayed with McGuirk, who ultimately had a seizure and had to be carried out of the bar.
After a Facebook post about her experience, she started hearing from others who had had similar experiences at the same bar.
“They were also roofied at Rooftop 210, the bar I was roofied at, and some were actually sexually assaulted as a result,” she said.
She created a YouTube video and finally filed a police report, with the Charlotte Mecklenburg Police Department, but found there wasn’t a law to cover having a drug put into a drink.
“It was a very surreal experience knowing that I had been victimized but that there wasn’t a law in place to support me or even to really define what had happened to me,” McGuirk said.
Awareness and prevention
Other parts of the bill close loopholes to make it easier to prosecute non-family caretakers who sexually assault children and removes the word “forcible” from the definitions of various sexual assaults.
“It’s taken 20 years for us to bring North Carolina laws into our 21st century with the rest of the country to fully and adequately address the way that we see sexual assault perpetrated and perpetuated in the state of North Carolina,” said Monika Johnson Hostler, head of the North Carolina Coalition Against Sexual Assault.
Johnson Hostler also said that departments of social services have flagged the need for closing the caregiver loophole, noting that 1-in-4 girls and 1-in-6 boys in the U.S. are sexually assaulted.
“The statistics in North Carolina are 1-in-5,” she said. “And we know that oftentimes happens within the home.”
While the bill has a long way to go before it sees Gov. Roy Cooper’s desk, the four primary sponsors come from both parties and the bill has quickly gained dozens of co-sponsors, which sets it up for easy passage in the House of Representatives.
“There are various numbers of survivors who we’ve heard from… saying it didn’t help me but I’m glad [the new law is] gonna help someone,” she said. “The way that we see this is really both awareness but most importantly prevention.”