North Carolina State Senator Jeff Jackson is sponsoring legislation making it illegal for a man to continue intercourse with a woman if she rescinds consent after intercourse has begun; which on its face seems a laudable endeavor.
The absurdity of Jackson’s bill, however, is manifested in his stated impetus for it; to counter a court decision; which is ludicrous in that courts do not make law.
Section 34 of The Judiciary Act of 1789 instructs courts to defer to state law in cases not specifically addressed in the United States Constitution. Chapter 14, Article 7b of the North Carolina General Statutes in no way expresses or implies a right to complete sexual intercourse. To the contrary, the statue implies that any penetration or vaginal intercourse occurring without consent is against the will of the victim.
A woman may give her consent to sexual intercourse, but during the act find it more painful than anticipated. No court or legislature has the right to oblige her to endure the pain simply for the sexual gratification of another.
Therefore if Jackson wanted to effectively address the issue, he would move to impeach the court to determine whether this miscarriage of justice was due to the court’s misapprehension of the law; or a willful disregard for it.
In any event, no court decision can serve to immunize any defendant in any case other than the instant case before the court; nor foreclose any other victim’s right to an examination of the merits of their case in their petition for redress.
Legislatures make the law; and courts are obliged to adjudicate in accordance with those laws. The legislature is obliged to remove any jurist who demonstrates inability or unwillingness to adjudicate in accordance with the law notwithstanding their personal views; because even if Jackson’s bill became law, it would be meaningless if courts disregard disregard it.