She drank too much and accepted a ride home from a fellow college student. But, instead of driving her home, he drove her to his place, where she passed out. When she woke up, she said, he was raping her. She said she managed to escape and go to police.
“I did everything right after,” Capshaw-Mack told The Associated Press. “I went to the hospital. I got my rape kit. I talked to the police immediately.”
But her perpetrator was never prosecuted, and Capshaw-Mack believes it may have had to do with a legal loophole that shifts blame to sexual assault victims. In North Carolina, it is legal to have nonconsensual sex with an incapacitated person if that person willingly got drunk or high. It is also legal to drug someone’s drink.
The state House passed a bill last week to close both loopholes. The measure now goes to the Senate.
It’s a step for North Carolina to join other states re-examining their sexual assault laws in the era of #MeToo.
North Carolina is among fewer than 10 states with sexual assault laws that don’t recognize as victims people who were incapacitated because of their own actions, according to North Carolina Coalition Against Sexual Assault attorney Skye David.
North Carolina is also the only state where a person cannot revoke consent for a sexual act once it is underway. The bill passed Monday does not address this 40-year-old legal precedent.
“We are pretty much behind the curve on passing legislation that really supports survivors,” said Monika Johnson-Hostler of the coalition.
Leah McGuirk fell victim a year ago at a bar in Charlotte. She only took her eyes off her drink for a moment when she fished in her purse for her wallet. Twenty minutes later, she started to feel woozy, and said she heard a hissing sound in her ears, like the sound of opening a soda bottle. Her vision went completely black.
“That’s when I started to freak out. I felt this sense of urgency like there is something horribly wrong with me,” she said.
McGuirk passed out and had a seizure. She had only finished half her drink.
When McGuirk tried to file a police report, she discovered having her drink spiked didn’t make her a victim under the law.
Since then, McGuirk has advocated for this legislation, which was introduced by Rep. Chaz Beasley of Charlotte, who is also running for lieutenant governor, and is co-sponsored by 63 other representatives from both major parties.
“I hope this is a little bit of solace to others,” McGuirk said. “If they are victimized, knowing that there are laws that protect them.”
Beasley’s bill doesn’t address the inability to revoke consent. A separate bill filed — for the fourth time — by Sen. Jeff Jackson would allow consent revocation. The bill is sitting in the Senate’s Rules Committee.
District Attorney Ashley Welch said the current laws are “archaic” and have forced her to tell many victims they cannot file charges because no crime was committed.
Capshaw-Mack’s tough experience inspired her to start a victims’ support group called Survivor’s Best Friend, which helps survivors adopt shelter dogs and get their pets certified as emotional support animals. The Associated Press does not usually name rape victims, but Capshaw-Mack agreed to be identified as she has previously spoken publicly as a survivor.
Even with changes in the law, a jury still might not view a victim who is drunk or similarly incapacitated as a victim, Capshaw-Mack said. Based on her experience, Capshaw-Mack said there’s a lot of negative stigma associated with incapacitated victims.
“What I’ve found is that it takes a long time for public perception to kind of catch up with the law,” Capshaw-Mack said. “So I think the first step, apart from passing these laws, would be to educate the public.”