One recurring question I get asked is this: If the Defendant engages in two sex acts in one continuous transaction, how many assaults have occurred?
When the acts are vaginal intercourse and the charge is rape, each separate act of vaginal intercourse that constitutes rape is a separate, punishable offense. State v. Dudley, 319 N.C. 656, 658-59 (1987); State v. Key, 180 N.C. App. 286 (2006); State v. Owen, 133 N.C. App. 543 (1999); State v. Midyette, 87 N.C. App. 199 (1987); State v. Small, 31 N.C. App. 556 (1976). Thus, a defendant properly was convicted of two counts of rape when he penetrated the victim on a couch, withdrew, and penetrated her again on the floor. State v. Sapp, 190 N.C. App. 698, 703-05 (2008). A variation of this occurs when Defendant A rapes the victim, aided and abetted by Defendant B, who then rapes the victim, aided and abetted by A. In this instance, the evidence supports two rape charges against each defendant. State v. Whitfield, 310 N.C. 608 (1984).
The rules for acts that constitute sexual offenses are the same. In cases of sexual offense, each unlawful sexual act committed by a defendant against a single victim during a continuous transaction constitutes a separate crime for which the defendant may be separately charged and convicted. State v. Dudley, 319 N.C. 656, 659 (1987); State v. Cortes-Serrano, 195 N.C. App. 644, 653-54 (2009); State v. Midyette, 87 N.C. App. 199 (1987). For example, if a defendant engaged in cunnilingus and anal intercourse with the female victim in a continuous transaction, two separate counts of sexual offense may be charged. This rule applies even if the two sexual acts occur simultaneously. State v. Williams, ___ N.C. App. ___, 689 S.E.2d 412, 425-26 (2009) (the defendant put his hands in the victim’s vagina and rectum at the same time). Apparently, State v. Petty, 132 N.C. App. 453 (1999) (when both cunnilingus and inserting object into minor’s genital area occurred during single transaction, only one conviction allowed), does not undercut this rule. State v. Gobal, 186 N.C. App. 308, 320 n.5 (2007) (noting that Petty dealt with the separate issue of unanimity of the jury verdict and holding that by sentencing the defendant to consecutive terms of imprisonment for two counts of sexual offense, the trial court did not violate the defendant’s double jeopardy rights), aff’d, 362 N.C. 342 (2008) (per curiam).
When the crime is indecent liberties, the rules are not so clear. Whether the defendant’s separate conduct during a continuous transaction supports multiple indecent liberties convictions seems to depend on whether the defendant’s separate acts involve the same or a different type of sexual contact. For example, in State v. Laney, 178 N.C. App. 337, 339-41 (2006), the court held that a number of acts involving the same sexual conduct (touching) committed during a single and continuous transaction constitute only one offense of indecent liberties. However, in State v. James, 182 N.C. App. 698, 703-05 (2007), the court held that the defendant’s conduct of engaging in three distinct sexual acts on the victim in one transaction—fondling her breasts, performing oral sex on her, and having sexual intercourse with her—supported three separate indecent liberties convictions. James distinguished Laney, on grounds that in Laney the defendant’s actions all involved the same sexual contact—touching—whereas the case before it involved three distinct sexual acts. Id. at 704-05; see also State v. Coleman, ___ N.C. App. ___, 684 S.E.2d 513, 520 (2009) (the defendant’s two acts—touching the child’s breasts and watching and facilitating her sexual encounter with another person—supported two convictions).
This discussion has focused on whether multiple acts committed during a single continuous transaction support multiple counts of the same sexual assault. I’ll leave for another day the separate issue of whether a defendant can be convicted of multiple different sexual assault offenses (for example, sexual offense, indecent liberties, and crime against nature) based on a single act (for example, anal intercourse).
