So We Can't Even Prosecute Our Rapists Now?

In the endless debates over sexual assault in this country, there is one thing most people seem to agree on: If you have sex with someone after they've said "no," it's rape. Except in North Carolina.

The law there dictates that once someone has said "yes" to sex, she cannot change her mind afterwards. Not if she has a cramp, not if she's tired, not if it hurts, and not—as was the case last week with one teenage victim in the state—if her partner becomes violent.

It defies all logic: Who else besides a rapist would continue to have sex with an unwilling partner? Are we really telling women that after they consent once, all bets are off?

[pullquote align='C']North Carolina's standard on consent is not just an unfortunate reminder of the misogynist way women used to be viewed, it's a reflection of how America treats them right now.[/pullquote]

After the tremendous progress Americans have made on sexual assault issues in the last decade—from "yes means yes" legislation to increased awareness and protests—laws like this one can seem like an anomaly. But North Carolina's standard on consent is not just an unfortunate reminder of the antiquated, misogynist way women used to be viewed, it's a reflection of how America treats them right now.

We cannot lull ourselves into believing that common-sense ideas about rape are also commonly-held.

We live in a time when a man accused of sexual assault or harassment by more than 20 women can be elected president. Or when a celebrity accused of raping over 60 women—a man who has admitted to drugging them—can walk free.

After Bill Cosby's sexual assault case ended in a mistrial, one juror suggested that he doubted the accuser because her stomach was showing at the time of the alleged attack. "Let's face it," he told The Philadelphia Inquirer, "she went up to his house with a bare midriff and incense and bath salts. What the heck?"

It's easy to forget people still believe this. They believe that if a woman wears a skirt, or shows her stomach, that she's sending a message about her sexual availability. They believe that if you say you want sex one time, that means you always want it.

Not just our thinking, but our laws, too, are mired in old-school noxiousness. An appeals court in Oklahoma, for example, ruled just last year that oral sex with a victim who is unconscious is not rape because such an act does not constitute "force." Somehow, the inability to fight back is actually a legal boon for rapists.

And like North Carolina, Maryland had a law until 2008 that said a woman couldn't revoke sexual consent after it was initially given. (Just as shocking was the reasoning behind the law: It was based on a 1980 court ruling decreeing that after penetration—what they called the "de-flowering" of a woman—"the damage was done.")

[pullquote align='C']That continuing to have sex with someone who says "no" is wrong should be obvious and inarguable.[/pullquote]

North Carolina's law is also based on a decades-old decision, and a state legislator is trying to amend it to make clear that consent can be withdrawn. But in the meantime, multiple women have been unable to prosecute their rapists. In 2010, for example, charges against a high school football player were dropped because of the law; this year a woman was unable to follow through with a rape case against her husband for the same reason. And now, a 19 year-old woman has gone public—revealing her name and story—after finding out that she couldn't prosecute her alleged attacker. The young woman says she willingly started to have sex with a man at a party, but told him to stop after he became violent.

"It's really stupid," she told a local newspaper. "If I tell you 'no' and you kept going, that's rape."

There are certain things most of us know are wrong, no matter what a law says. Continuing to have sex with someone who says "no" is one of those things. It should be obvious and inarguable. But being right isn't enough—not until this country and culture stop giving rapists the benefit of the doubt at all costs. Until then, we're all wrong.

Jessica Valenti is a contributing editor to MarieClaire.com—read her weekly column here.