Bill to revise definition for consent, close sex assault loophole, stalled in Senate

House Bill 393 changes a definition in state law for "mentally incapacitated" in an effort to make it clear: Someone who is completely intoxicated cannot consent to sex.

Berger, R-Rockingham, said the measure came up during a Wednesday meeting with House Speaker Tim Moore, who identified it as a House priority.

"We're going to take another look at that bill," Berger said.

In 38 North Carolina counties, there weren't any sexual assault convictions recorded at all during the four and a half years reporters studied.

"I think the incapacitation loophole is large," said Skye David, a lobbyist and staff attorney for the North Carolina Coalition Against Sexual Assault. "If you were completely sober and the same exact act happened, you would be a victim. So, (right now) we're creating two different classes of rape victims because someone made a choice to drink."

The bill would strip out language that says a "poisonous or controlled substance" has to be given to someone without their knowledge or consent for them to be "mentally incapacitated." Instead, the law would say that, if they're "substantially incapable of either appraising the nature of his or her conduct or resisting the act of vaginal intercourse or a sexual act," then they're incapacitated.

The bill makes it clear that, if you're going to have sex with someone, Wake County District Attorney Lorrin Freeman said, they need to be capable of consent.

"If someone's incapable of affirmatively saying yes, then that's it," Freeman said.

It's not clear why the bill hasn't moved in the Senate. It's been sitting in the Senate Rules committee since April 30, and committee Chairman Bill Rabon said early this week that it wasn't on his radar and that he didn't think anyone had asked him to move it.

“I could be mistaken, but I don’t think so," he said.

Rep. Chaz Beasley, D-Mecklenburg, is the bill's lead sponsor and one of 65 House members co-sponsoring the bill. Beasley said he's reached out to Rabon a couple of times on it, and he was surprised to hear Rabon's explanation.

"I understand that Sen. Rabon has a lot of bills that come through his committee," Beasley said. "I definitely would like to chat with him and get it moving."

Beasley didn't seem worried about the bill's ultimate fate. Since it has cleared one chamber, it has through the end of this session and next year's legislative session to pass without having to start the process again.

Beasley said he hasn't heard any specific concerns with the bill.

"I'm having a lot of very good conversations with people in the Senate," he said.

Sen. Jeff Jackson, D-Mecklenburg, introduced a bill with bipartisan support to address that this year, but Senate Bill 563 hasn't gotten a hearing. Jackson also introduced the bill in 2017 and in 2018, without getting a hearing for it.

"Given no reason," Jackson said. "Have yet to meet a member of either party who told me they were opposed to closing the loophole."