What is Rape?

Under common law, Rape is the unlawful carnal knowledge of a women by a man, not her husband, without her consent. Originally, rape required that a man penetrate a women’s sex organ with that of his own, and a women was unable to be convicted of Rape unless she aided or abetted the commission of the crime or was a conspirator of the crime.

Whether its First or Second Degree Rape, the punishments for such a crime nonetheless will result in a jail sentence. Don’t let this happen to you. If you or a loved one is accused of rape, it is important that you act soon, even before a charge is brought.

How North Carolina defines rape today

In North Carolina the common law definition of rape was replaced by statute, and the current offenses are in Article 7B of Chapter 14. The gendered elements are gone: the statutes are written in neutral terms and the marital exemption no longer appears in the forcible provisions. What remains is a requirement of vaginal intercourse, which is what separates a rape charge from a sexual offense charge under the same article.

There are two forcible grades. First-degree forcible rape under G.S. 14-27.21(a) requires vaginal intercourse “by force and against the will of the other person” plus one of three further circumstances: the person “uses, threatens to use, or displays a dangerous or deadly weapon or an article which the other person reasonably believes to be a dangerous or deadly weapon”, “inflicts serious personal injury upon the victim or another person”, or “commits the offense aided and abetted by one or more other persons”. It is a Class B1 felony. Second-degree forcible rape under G.S. 14-27.22 requires the same intercourse by force and against the will, without any of those additional circumstances, and is a Class C felony.

Second-degree forcible rape does not always require force

G.S. 14-27.22(a) sets out two routes to the same Class C felony. The first is vaginal intercourse “by force and against the will of the other person”. The second requires no force at all: it applies where the other person has a mental disability or is mentally incapacitated or physically helpless, and “the person performing the act knows or should reasonably know” of that condition.

Each of those terms is defined in G.S. 14-27.20. “Mentally incapacitated” describes a victim who, due to any act, is “rendered substantially incapable of either appraising the nature of his or her conduct, or resisting the act”. “Physically helpless” covers a victim who is unconscious, or who is physically unable to resist or to communicate unwillingness to submit. A person “who has a mental disability” is one with an intellectual disability or a mental disorder that temporarily or permanently renders the victim substantially incapable of appraising the nature of the conduct, resisting it, or communicating unwillingness. Cases built on these definitions frequently turn on intoxication and on what the defendant knew or reasonably should have known at the time.

What “against the will of the other person” means

In North Carolina, G.S. 14-27.20 defines “against the will of the other person” as without the consent of the other person, and it also reaches conduct occurring after consent is revoked “in a manner that would cause a reasonable person to believe consent is revoked”. That second limb was added by statute and settles a question that had previously been litigated: intercourse that begins consensually can become non-consensual.

The definition also explains why the statutes speak of force “and against the will” as two things rather than one. Force is a separate element from absence of consent, and North Carolina appellate decisions have long recognized that the force element can be satisfied by constructive force — threats or intimidation — as well as by actual physical force.

Rape and sexual offense are separate charges in North Carolina

A person accused of non-consensual sexual conduct that did not involve vaginal intercourse is not charged with rape in North Carolina. They are charged under the parallel sexual offense provisions. G.S. 14-27.26 makes first-degree forcible sexual offense a Class B1 felony on the same three aggravating circumstances, and G.S. 14-27.27 makes second-degree forcible sexual offense a Class C felony on the same two routes as second-degree rape.

The dividing line is the definition of “sexual act” in G.S. 14-27.20: “cunnilingus, fellatio, analingus, or anal intercourse”, which the statute says “does not include vaginal intercourse”, together with penetration, however slight, by any object into the genital or anal opening of another person’s body. Where the conduct alleged is sexual contact without penetration, the applicable statute is usually sexual battery under G.S. 14-27.33, a Class A1 misdemeanor that requires sexual contact for the purpose of sexual arousal, gratification or abuse, by force and against the will, or where the other person has a mental disability or is mentally incapacitated or physically helpless.

The age-based rape offenses are separate again

Force is not an element of the statutory rape offenses. G.S. 14-27.23 covers an adult of at least 18 who engages in vaginal intercourse with a child under 13, and is a Class B1 felony carrying a mandatory minimum of 300 months active punishment. G.S. 14-27.24 covers a defendant at least 12 years old and at least four years older than a victim under 13, also a Class B1 felony. G.S. 14-27.25 covers a victim who is 15 or younger: under subsection (a) the defendant must be at least 12 and at least six years older, a Class B1 felony, and under subsection (b) at least 12 and more than four but less than six years older, a Class C felony. A defendant exactly four years older, or less, is outside G.S. 14-27.25 altogether.

These charges can be brought on facts the parties themselves describe as consensual. That is the design of the statutes: the ages are the elements, and nothing about the complainant’s agreement is put in issue.

Consequences that attach on conviction beyond the sentence

A conviction under G.S. 14-27.21 or G.S. 14-27.24 carries an express consequence written into the statute itself. Subsection (c) of each provides that the convicted person “has no rights to custody of or rights of inheritance from any child born as a result of the commission of the rape”, and no rights related to that child under Chapter 48 or Subchapter 1 of Chapter 7B of the General Statutes. G.S. 14-27.23(d) says the same for statutory rape of a child by an adult.

Each of these offenses is also a “sexually violent offense” under G.S. 14-208.6(5), producing a reportable conviction and registration under Article 27A. Where the offense meets the definition of an aggravated offense in G.S. 14-208.6 — a sexual act involving vaginal, anal or oral penetration with a victim of any age through the use of force or the threat of serious violence, or such an act with a victim under 12 — registration is for life under G.S. 14-208.23. Satellite-based monitoring is considered separately at sentencing under G.S. 14-208.40A, and there the court orders enrollment only if it determines, after a risk assessment, that the offender requires the highest possible level of supervision and monitoring.

Rule 412 governs evidence about the complainant

In a North Carolina rape prosecution, the complainant’s sexual behavior is irrelevant under Rule of Evidence 412 unless it falls within one of four exceptions: behavior between the complainant and the defendant; specific instances of sexual behavior offered to show that the acts charged were not committed by the defendant; a pattern of behavior so distinctive and so closely resembling the defendant’s version of the alleged encounter as to tend to prove that the complainant consented or behaved so as to lead the defendant reasonably to believe there was consent; and behavior offered as the basis of expert psychological or psychiatric opinion that the complainant fantasized or invented the acts charged. The first exception is defined by who was involved, not by the purpose for which the evidence is put forward.

The rule requires the question to be resolved before the evidence is offered. The proponent applies to the court, which holds an in camera hearing, transcribed, outside the presence of the jury, and the record of that hearing and the evidence relating to it may be inspected only by the parties, the complainant, their attorneys and the court and its agents, and used only as necessary for appellate review. This is one reason the shape of a defense in a rape case is often fixed well before trial.

Common questions

Written for North Carolina law and reviewed by David P. Sheehan, attorney, Charlotte. General information, not legal advice — see the disclaimer.

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