Dropped rape charge against football player prompts questions

Published: Sep. 28, 2010 at 2:54 AM EDT|Updated: Oct. 28, 2010 at 3:42 AM EDT
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By Tom Roussey - bio l email

CHARLOTTE, NC (WBTV) - Critics say a recent accusation of rape against a Butler High School football player shows why North Carolina needs a new rape law.

Charges against Oswaldo Sombo were dropped last week.  His attorney Brad Smith says Sombo had consensual sex with a teen girl at her home earlier in the summer.

That teen girl told WBTV she never consented to sex at any point.

But the district attorney's office wrote that it's reason for dismissal was the following (edited to remove the most graphic words, click here to read the full report):

"...it hurt and she told him to stop.  Mr. Sombo did not acquiesce to her desire and proceeded...while she continued to tell him to stop.  State v. Way (297 N.C. 293) states that if [intercourse begins] with the victim's consent, no rape has occurred though the victim later withdraws consent during the same act of intercourse.  The victim's initial statements to law enforcement and medical personnel do not indicate initial [intercourse] was without her consent, rather, the statements imply that she withdrew consent because of the pain she was suffering and that the defendant paid no heed but continued to hurt her.  Therefore, applying State v. Way to the facts of the case, a rape has not been legally committed."

The State v. Way case involves a supreme court decision from 1979 on a case that originated from Mecklenburg County.  Critics say it gives a man license to do whatever he wants once a woman gives initial consent to sex, and it doesn't let her change her mind.

"It's outrageous.  It's a violation of human rights," said Cara Kulwicki, a feminist writer who has written about the case on her blog The Curvature.  "No one is owed consent to sex.  If consent is not revocable that's exactly what the state is saying."

The accuser's father has contacted lawmakers in Mecklenburg County to try to get a new law that would undo the State v. Way decision.

"We want the representatives and the senators to take up this bill and write it so that if you say no it's no, like it is pretty much anywhere else in the world," he said.  WBTV is not identifying his name to protect his daughter's identity.

But Brad Smith, an attorney representing Sombo, says the correct interpretation of State v. Way doesn't make it nearly as difficult for a woman to withdraw consent as critics believe.

He says to make the changes the accuser's father wants to push for would go too far.

"He's basically asking the General Assembly to make consensual sex illegal," Smith said.

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