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:

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.

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:

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:

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.

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.”

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.”

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.

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.

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.

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.

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.