Crime against nature is usually an “add on” to other charged sexual assaults, such as forcible or statutory sexual offense and indecent liberties with a child. In this post, I’ll address several aspects of the offense that keep tripping lawyers up.
First, what’s covered by the offense? The statute makes it a Class I felony to “commit the crime against nature, with mankind or beast.” G.S. 14-177. That doesn’t get us very far. Thus, we need to look at the case law. Cases hold that each of the following acts is a crime against nature:
- the inserting, by a male, of his sexual organ into the mouth or anus of another male or a female, State v. Fenner, 166 N.C. 247 (1914); State v. Harward, 264 N.C. 746 (1965); State v. Copeland, 11 N.C. App. 516 (1971),
- the receiving, by a male or a female, of the sexual organ of a male into his or her mouth or anus, State v. Griffin, 175 N.C. 767 (1876); State v. Chance, 3 N.C. App. 459 (1969),
- fellatio, State v. Poe, 40 N.C. App. 385 (1979),
- cunnilingus, State v. Joyner, 295 N.C. 55 (1978),
- analingus, and
- the inserting of an object into a person’s genital opening, State v. Stiller, 162 N.C. App. 138 (2004).
While there are no North Carolina appellate cases on sexual acts with animals, the statute expressly includes “the crime against nature, with . . . [a] beast.” G.S. 14-177. Note that the penetration of the female sexual organ by the male sexual organ (what we think of as heterosexual sex) is not included.
Second, crime against nature is requires penetration. State v. Whittemore, 255 N.C. 583 (1961); In re R.N., ___ N.C. App. ___, 696 S.E.2d 898 (2010). This is in contrast to a charge of sexual offense based on, for example, the act of cunnilingus. For a sexual offense charge, penetration is not required; stimulation by tongue or lips of any part of the woman’s genitalia is sufficient. State v. Ludlum, 303 N.C. 666 (1981). Occasionally the appellate division is somewhat permissive in terms of the evidence that will satisfy the penetration requirement. For example, the court of appeals held there was sufficient evidence of penetration when a 4-year-old victim licked an 11-year-old’s penis. In re Heil, 145 N.C. App. 24 (2001) (“We recognize that the evidence of penetration is, at best, slight. However, in light of the relative size difference between a four year old and an eleven year old, and the fact that the incident occurred in the presumably close quarters of a closet, it was reasonable for the trial court to find . . . that there was some penetration, albeit slight, of juvenile’s penis into [the victim’s] mouth.”). In others, however, it is stricter. Thus, evidence that a juvenile licked and put his mouth on the victim’s private area and “touch[ed] . . . on her private parts” was held to be insufficient to establish penetration, as was evidence that he forced the victim’s head down to his privates and that she saw his private area. In re R.N., ___ N.C. App. ___, 696 S.E.2d 898, 902 (2010).
The third issue that sometimes trips people up regarding crime against nature is the issue of lack of consent. Some sexual offense crimes include force as an element. See, e.g., G.S. 14-27.4 (first-degree forcible sexual offense). As such, the relevant conduct is never constitutionally protected. However, crime against nature does not include an element of force or lack of consent and thus can encompass constitutionally protected conduct. For example, if the relevant acts (fellatio, cunnilingus, etc.) occur between two consenting adults, in private and not for money, the conduct is constitutionally protected under Lawrence v. Texas, 539 U.S. 558 (2003). The crime against nature statute is not unconstitutional on its face under Lawrence and it may be used to prosecute conduct involving a minor, nonconsensual or coercive sexual acts, conduct occurring in a public place, or conduct involving prostitution or solicitation. State v. Whiteley, 172 N.C. App. 772 (2005); State v. Pope, 168 N.C. App. 592 (2005). However, when the charge involves private conduct between adults not in public and not for money, Lawrence requires that the State prove lack of consent. State v. Hunt, __ N.C. App. __, __ S.E.2d __ (May 3, 2011) (reversing the defendant’s conviction for crime against nature based on private conduct with a 17-year-old female, not for money, the court concluded that there was insufficient evidence of lack of consent).
Finally—and perhaps most significantly for defense lawyers trying to figure out the best crime for their clients to plead guilty to—crime against nature is one of the few sexual-related offenses that does not require registration under the sex offender registration statutes. But, as discussed above, if the conduct at issue involves heterosexual sex it’s not covered by this crime and thus there would be no factual basis for a plea.
If there are other areas of confusion about this offense, let me know and I will try to address them.
