Attention: Systems Failure: When the Law Fails, How Can Rape Victims Access Justice?

*In 2016, the SOL program pivoted for the year to focus on political engagement in what was then called the “Political Engagement Pilot Project,” or PEPP. This was an alternative version of SOL that laid the groundwork for the development of the PEP program as it currently exists.

What’s the Problem?

“Did you fight back?” It’s a question rape victims fear. It contributes to a culture of shame and is part of the reason more victims don’t report their rapes to the police. However, because of the law in North Carolina, it becomes a legally required part of a rape investigation. North Carolina’s laws on rape and sexual offenses are outdated and place the onus on the victim to demonstrate a ‘sufficient’ amount of resistance to their attack. A person’s consent is legally irrelevant: all that matters is whether or not the victim did everything she could to get away.

The result? A person’s fortune in escaping physically unscathed despite a traumatic rape likely means an inability to prosecute. The problem? Rape victims are unable to seek justice.

By design, the legal system is the process by which people seek justice. The law is meant to protect private property, ensure fundamental rights, and discipline those who violate the rights of others. But what happens when the law fails to match social norms? What is the law good for if it fails to criminalize conduct that should be illegal?

North Carolina’s legal conceptions of what constitutes sexual violence does not fit with current conversations about sexual assault. Efforts to dispel victim-blaming, particularly prominent in the kinds of policies universities like Duke have adopted, are entirely absent from North Carolina law. In fact, North Carolina rape law largely hinges on rape myths and antiquated gender roles. North Carolina’s law allows for only the very narrow prosecution of perpetrators and legally precludes many victims from seeking justice. The concept of consent is largely absent from both black letter law and case law.

By contrast, universities like Duke rely on a definition of affirmative consent, meaning that the person initiating sexual activity must procure a clear agreement to engage in “mutually acceptable” sexual activity. Any confusion requires that “each participant stops and clarifies, verbally, willingness to continue.” Inability to consent is defined far more broadly than North Carolina’s law and includes “when an individual is incapacitated due to alcohol or other drugs, scared, physically forced, passed out, asleep, unconscious, intimidated, coerced, mentally or physically impaired, beaten, threatened, isolated, or confined.” The victim’s actions in attempting to resist unwanted sexual intercourse are unrelated to a finding of responsibility and university sanctioning.

The dissonance between university procedures and state law isn’t a hypothetical problem; it plays out in very real ways for rape victims. I was raped in November 2015 and went to the hospital for a sexual assault examination. The police officer who came to my hospital room seemed uninterested in what I had to report and made it clear that my complaint would likely go nowhere. Her demeanor may have stemmed from the fact that my rape – considered rape by any reasonable person’s standard – did not legally constitute rape under North Carolina law. Duke, by contrast, took my complaint seriously and, after an investigation, expelled my rapist.

When the only real method victims have to seek justice is in a university context, the legal system is failing to do the job it was designed to do. Justice for rape victims becomes conditional on access to higher education. Further, the most severe form of punishment perpetrators can receive in a university context is expulsion, risking thousands of sexual predators simply relocating rather than being detained by the criminal justice system. When the legal system is so disconnected from current social conceptions of rape, how can survivors find any real form of justice and how can the law hope to catch up?

In this examination, I seek to fully explore North Carolina’s law on sexual assault and rape. I want to find out how the law has failed victims in pursuing court cases and determine what kinds of rape are outside the bounds of prosecution. In conducting this examination, I also want to examine how universities have developed their own policies and procedures as another avenue for survivors to seek justice. In the current political conversation, with conservative politicians increasingly pushing for universities to have no role in sexual assault adjudication and to rely solely on state criminal enforcement, it is important to have an adequate understanding of how the state is currently treating rape cases. If this examination reveals that state law fails to provide victims with sufficient recourse for justice, it should lend credence to the argument that universities have an important role to play in giving survivors some semblance of justice.