North Carolina rape law: you can't withdraw consent

cmhbob · Jun 25, 2017

It's not that states give parental rights. Those parental rights are assumed to exist. Unless they are explicitly withdrawn somewhere in state code, it becomes a custody issue.

ULTRAGOTHA · Jun 25, 2017

Jason said:
Oh gotcha - so there was a law, but nothing explicit anymore. So, case law stands as precedent for any future case, which to date has not happened to give the courts standing to define it explicitly. And that's why the legislator is trying to make the proposed change - before there's another case. But it's getting bogged down in committee...

Did I suss it out finally?

Sorry, so confused here...

There was a law and a court cases, as cited. But the law changed and that court case no longer applies because it refers to the old law. Cases since 1980 and future cases must rely on the current law, where that court case cannot be used as precedent.

For example, if there was a court case that said "The law says it's illegal to steal 'vine fruit and cane fruit and tree fruit'. The defendant is not guilty because they stole a pineapple." That's all well and good as precedent UNTIL the law changes to say "Stealing any fruit is illegal." The pineapple case cannot then be used as precedent.

cornflake said:
The caselaw hasn't been overridden by anything, because no case has come up or been taken or no one deciding a case thought to explicitly state something that'd overturn Shay, and no statute addresses it so that stands and the bill that would address it can't get to the floor, yeah.

The case law was overridden by a change to the law in 1980. Every rape case since then has addressed the consent issue in one way or another. Its disingenuous to say "no case has come up or been taken or no one deciding a case thought to explicitly state something that'd overturn Shay" because Shay can no longer apply since it was based on old law that was changed in 1980.

cornflake said:
Sure, but he's claiming jury instruction basically is somehow codified into law. He argues somewhere in the thread of one of the twits that the law is thus because that's how some jury instructions are given. If he was saying juries are instructed thus, hence it must be based on law, it'd make more sense, even though he can't cite that law, but he seems to be saying the reverse, juries are (or have been) instructed thus, hence it is the law, because juries have been told it in instructions.

This Tweet?
https://twitter.com/greg_doucette/status/878088437416329216

I take that to mean that the jury instructions are written to instruct what the law is, not that instructions are statute. Jury instructions can't be given however the judge wants to give them. They're created by committees and given to judges to give to the jury, and they explain (sometimes not very clearly, alas) what the law is. If the judge deviates from them, she risks the verdict being overturned on appeal for incorrect jury instructions.

Confusing jury instruction is being played out in the Cosby mistrial, BTW.

I think spreading this misinformation is dangerous to women in North Carolina who may become convinced they cannot withdraw consent after penetration. They can. They should if they wish. Speak up. Say no at any time if you don't want to continue. At that point intercourse is taking place against your will and it's rape.

cornflake · Jun 25, 2017

ULTRAGOTHA said:
There was a law and a court cases, as cited. But the law changed and that court case no longer applies because it refers to the old law. Cases since 1980 and future cases must rely on the current law, where that court case cannot be used as precedent.

For example, if there was a court case that said "The law says it's illegal to steal 'vine fruit and cane fruit and tree fruit'. The defendant is not guilty because they stole a pineapple." That's all well and good as precedent UNTIL the law changes to say "Stealing any fruit is illegal." The pineapple case cannot then be used as precedent.

The case law was overridden by a change to the law in 1980. Every rape case since then has addressed the consent issue in one way or another. Its disingenuous to say "no case has come up or been taken or no one deciding a case thought to explicitly state something that'd overturn Shay" because Shay can no longer apply since it was based on old law that was changed in 1980.

This Tweet?
https://twitter.com/greg_doucette/status/878088437416329216

I take that to mean that the jury instructions are written to instruct what the law is, not that instructions are statute. Jury instructions can't be given however the judge wants to give them. They're created by committees and given to judges to give to the jury, and they explain (sometimes not very clearly, alas) what the law is. If the judge deviates from them, she risks the verdict being overturned on appeal for incorrect jury instructions.

Confusing jury instruction is being played out in the Cosby mistrial, BTW.

I think spreading this misinformation is dangerous to women in North Carolina who may become convinced they cannot withdraw consent after penetration. They can. They should if they wish. Speak up. Say no at any time if you don't want to continue. At that point intercourse is taking place against your will and it's rape.

Again, I haven't seen a statute that addresses the issue in the Shay decision.

I don't think there were confusing instructions in the Cosby case at all; I think there were jurors with comprehension issues that would not have been solved with pictograms and a presentation of instructions by Big Bird.

If it's misinformation, someone should tell the DA.

North Carolina rape law: you can't withdraw consent

cmhbob

Did...did I do that?

ULTRAGOTHA

Merovingian Superhero

cornflake

practical experience, FTW