Clicky

Charlotte NC Attorneys at Law
Rosensteel Fleishman

Rape

If you have been arrested for rape, you are facing a very serious charge. Under certain circumstances in North Carolina, a person convicted of rape can receive a punishment of life imprisonment without parole. A skilled defense attorney can evaluate possible defenses in your case, as well as potentially negotiate with prosecutors for a lesser charge or punishment. Call Mr. Rosensteel so that he can begin examining your case as soon as possible.

In North Carolina, the crime of rape is broken down into two categories – first degree rape and second degree rape. Both first degree rape and second degree rape require a person to engage in non-consensual vaginal intercourse with another person, but the crime of first degree rape contains additional elements and comes with a harsher punishment.

 

First Degree Rape

North Carolina statute G.S. 14-27.2 sets out the elements of the crime of first degree rape. For a person to be guilty of first degree rape, that person must:

  • Engage in vaginal intercourse with a child under the age of 13 years, and the person accused must be at least 12 years old and at least four years older than the child; or
  • Engage in vaginal intercourse with another person by force and against the will of the other person and (1) use a dangerous or deadly weapon, (2) inflict serious personal injury, or (3) commit the offense while aided and abetted by at least one other person.

If a person is convicted of first degree rape, that person is guilty of a Class B1 felony. This is the second highest punishment level for felonies. Depending on a person’s prior convictions, the punishment can range from 144 months to life imprisonment without parole.

 

Second Degree Rape

North Carolina statute G.S. 14-27.3 sets out the elements of the crime of second degree rape. For a person to be guilty of second degree rape, that person must engage in vaginal intercourse:

  • With another person by force and against the will of the other person; or
  • With a person who is mentally disabled, mentally incapacitated, or physically helpless.

A separate section of the North Carolina statutes (G.S. 14-27.1) defines the the terms mentally disabled, mentally incapacitated and physically helpless as follows:

  • Mentally disabled: (i) a victim who suffers from mental retardation, or (ii) a victim who suffers from a mental disorder, either of which temporarily or permanently renders the victim substantially incapable of appraising the nature of his or her conduct, or of resisting the act of vaginal intercourse or a sexual act, or of communicating unwillingness to submit to the act of vaginal intercourse or a sexual act.
  • Mentally incapacitated:  a victim who due to any act committed upon the victim is rendered substantially incapable of either appraising the nature of his or her conduct, or resisting the act of vaginal intercourse or a sexual act.
  • Physically helpless: (i) a victim who is unconscious; or (ii) a victim who is physically unable to resist an act of vaginal intercourse or a sexual act or communicate unwillingness to submit to an act of vaginal intercourse or a sexual act.

A person who commits second degree rape is guilty of a Class C felony. Depending on a person’s prior convictions, the punishment for a Class C felony can range from 44 months to 182 months.

 

Force

One element that might be necessary to prove a rape charge is that the person used force to engage in vaginal intercourse. However, North Carolina courts have held that physical force is not required to prove this element. Under the General Fear Theory, “[t]he force necessary to sustain a conviction of rape … need not be actual physical force, but may be constructive force such as fear, fright, or coercion.”

 

Consent

Another element that is often necessary to prove a rape charge is that the vaginal intercourse was against the other person’s will. A defense to this element a defendant might raise is that the vaginal intercourse was consensual. North Carolina courts have held that typically the State can prove the victim’s lack of consent “only by evidence of statements or actions by the victim which were clearly communicated to the defendant and which expressly and unequivocally indicated the victim’s . . . lack of consent to the particular act of intercourse.”

 

Penetration

To prove that vaginal intercourse occurred, there must be evidence of penetration. North Carolina statute G.S. 14-27.10 provides that it is not necessary to “prove the actual emission of semen” to show vaginal intercourse. Instead, the statute provides that “[p]enetration, however slight, is vaginal intercourse.” Evidence of penetration can include testimony from the victim, as well as physical evidence from a medical examination.

 

Deadly Weapon:

North Carolina courts have defined a deadly weapon as “one which, under the circumstances of its use, is likely to cause death or great bodily harm.” Furthermore. “[t]he deadly character of the weapon depends sometimes more upon the manner of its use and the condition of the person assaulted than upon the intrinsic character of the weapon itself.” Examples of deadly weapons can range anywhere from a pistol or knife to a 2×4, chair or a person’s body.

 

Serious Injury:

North Carolina courts have deliberately chosen not to define what a serious injury is specifically, but a serious injury generally means a physical or bodily injury resulting from an assault. The courts have set out factors that are relevant in determining whether an injury is serious: “(1) pain and suffering; (2) loss of blood; (3) hospitalization; and (4) time lost from work.” Courts have cautioned, however, that hospitalization is not required for an injury to qualify as serious.

 

Marital Rape

Rape occurring between spouses is treated the same as rape occurring between strangers. Historically, there was a marital exemption which permitted men to rape their wives without committing the crime of rape. However, G.S. 14-27.8 now provides that a person can be prosecuted for rape whether or not the victim is the person’s legal spouse at the time of the alleged rape.

 

Statutory Rape

A person commits the crime of statutory rape by engaging in vaginal intercourse with a minor who is 13, 14 or 15 years old and the person is at least four years older than the minor. If the person is at least four but less than six years older than the minor, that person is guilty of a Class C felony by engaging in vaginal intercourse with the minor. If the person is at least six years older than the minor, that person is guilty of a Class B1 felony by engaging in vaginal intercourse with the minor.

The statutory rape provision does not require that the vaginal intercourse be non-consensual. However, there is a marital exemption for this crime if the adult is lawfully married to the minor. This marital exemption only applies to consensual sex between parties who would otherwise be engaging in statutory rape and does not apply to non-consensual sex between the married couple.

A person charged with statutory rape might argue that the minor lied about her age and that a reasonable person would have believed this lie. However, in North Carolina, a reasonable mistake of age is not a defense to the crime of statutory rape.

If you have been charged with rape, you need a skilled defense attorney to help defend your case. Call Rosensteel Fleishman, PLLC (704) 714-1450, to discuss your options.