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Charlotte NC Attorneys at Law
Rosensteel Fleishman

Sexual Offense

If you have been arrested for sexual offense, you are facing a very serious charge with very serious consequences. Under certain circumstances, a person convicted of sexual offense in North Carolina can receive a punishment of life imprisonment without parole. Because there is a wide range of offenses and a very broad possibility for punishment it is important to consult with a lawyer who can advise you of your options. A skilled defense attorney can potentially negotiate with prosecutors for a lesser charge or punishment and help you evaluate possible defenses in your case. Call Mr. Rosensteel as soon as possible so that he can begin examining your case.

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

A sexual act is defined by North Carolina statute as meaning “cunnilingus, fellatio, analingus, or anal intercourse, but does not include vaginal intercourse. Sexual act also means the penetration, however slight, by any object into the genital or anal opening of another person’s body: provided, that it shall be an affirmative defense that the penetration was for accepted medical purposes.”

 

First-Degree Sexual Offense

A person commits the crime of first-degree sexual offense when that person engages in a sexual act with either

  • a child under the age of 13 years and the person is at least 12 years old and at least four years older than the child, or
  • a person by force and against the will of the other person and (1) uses a dangerous or deadly weapon, (2) inflicts serious personal injury, or (3) commits the offense while aided and abetted by at least one other person.

 

A person who commits first-degree sexual offense is guilty of a Class B1 felony, which is the second highest level of felony under North Carolina law. The punishment for a person found guilty of a Class B1 felony can range from 144 months to life imprisonment without parole, depending on the person’s prior convictions.

 

Second-Degree Sexual Offense

A person commits the crime of second-degree sexual offense when that person engages in a sexual act either

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

 

The terms “mentally disabled”, mentally incapacitated,” and “physically helpless” are defined by North Carolina statute 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 sexual offense is guilty of a Class C felony. The punishment for a Class C felony can range from 44 to 182 months, depending on the person’s prior convictions.

 

First-degree and second-degree sexual offenses are punished equivalently to first-degree and second-degree rapes. The difference between the offenses is that rape requires vaginal intercourse, while sexual offense requires a sexual act (cunnilingus, fellatio, analingus, or anal intercourse). However, the statutes contain much of the same language and other elements. For a discussion regarding the elements of force, consent, deadly weapon, and serious injury, see the information page on rape.

 

Penetration

Unlike the crime of rape, penetration is not always required in proving sexual offense. If the sexual act at issue is cunnilingus, fellatio or analingus, penetration is not required. However, if the sexual act is anal intercourse or penetration by any object into the genital or anal opening of another person’s body, penetration is a required element. North Carolina statute provides that to prove anal intercourse, it is not necessary to “prove the actual emission of semen.” Instead, “[p]enetration, however slight, is … anal intercourse.” Evidence of penetration can include testimony from the victim, as well as physical evidence from a medical examination.

 

Marital Status is Not a Defense

North Carolina statute provides that a person can be prosecuted for sexual offense whether or not the victim is the person’s legal spouse at the time of the alleged sexual offense.

 

Statutory Sexual Offense

A person commits the crime of statutory sexual offense by engaging in a sexual act 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 commits a Class C felony by engaging in a sexual act with the minor. If the person is at least six years older than the minor, that person commits a Class B1 felony by engaging in sexual act with the minor.

The statutory sexual offense provision does not require that the sexual act 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 sexual acts between parties who would otherwise be engaging in statutory sexual offense and does not apply to non-consensual sexual acts between the married couple.

 

Sexual Battery

There are other sex offenses besides first-degree and second-degree sexual offense. One such crime is sexual battery. A person is guilty of sexual battery if that person engages in sexual contact for the purpose of sexual arousal, sexual gratification, or sexual abuse

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

 

Sexual contact is defined by North Carolina statute as meaning “(i) touching the sexual organ, anus, breast, groin, or buttocks of any person, (ii) a person touching another person with their own sexual organ, anus, breast, groin, or buttocks, or (iii) a person ejaculating, emitting, or placing semen, urine, or feces upon any part of another person.”

Touching is further defined as meaning “physical contact with another person, whether accomplished directly, through the clothing of the person committing the offense, or through the clothing of the victim.”

Evidence supporting an inference of sexual arousal or sexual gratification can include locking a door prior to the sexual contact, as well as previously asking the victim on a date and making inappropriate contact with the victim’s thigh. However, if the sexual contact occurs between two children, North Carolina courts have held that a sexual purpose cannot be inferred from the act itself and does not exist “without some evidence of the child’s maturity, intent, experience, or other factor indicating his purpose in acting[.]” Factors to consider when determining a juvenile’s sexual purpose include “age disparity, control by the juvenile, the location and secretive nature of the juvenile’s actions, and the attitude of the juvenile.”

A person who commits sexual battery is guilty of a Class A1 misdemeanor. The punishment for a Class A1 misdemeanor ranges from 1-150 days, depending on prior convictions. However, while a person with no prior convictions might receive a community punishment, he might also receive an active punishment. This means that a person with no prior convictions can be sentenced to up to 60 days of jail time if he is found guilty sexual battery.

If you have been charged with sexual offense or sexual battery, contact an attorney at Rosensteel Fleishman, PLLC (704) 714-1450, to discuss your options.