Is Force an Element of Forcible Rape?

The answer would seem to be obvious.  A person is guilty of forcible rape if the person engages in vaginal intercourse with another person by force and against the will of the other person.  N.C.G.S. §§ 14-27.21 (first-degree); 14-27.22 (second-degree).  Our Supreme Court has, at least once, found insufficient evidence of “the element of force” and reversed a rape conviction on that basis.  See State v. Alston, 310 N.C. 399, 408, 312 S.E.2d 470, 476 (1984).  Our Supreme Court recently held, however, that a juvenile petition for sexual battery was not defective for failure to allege force.  “[O]ne cannot engage in nonconsensual sexual contact,” the Court said, “without the application of some ‘force,’ however slight.”  In the Matter of J.U., 384 N.C. 618, 625, 887 S.E.2d 859, 864 (2023).  The requisite force, in other words, is inherent in the act.  The significance of that holding transcends its context: juvenile petitions are held to the same standards as indictments, which generally must allege all the elements, and misdemeanor sexual battery is statutorily defined using the same terms as forcible rape.  This post examines the element of force in cases of rape.

Common Law and Early Statutes

At common law, rape was defined as the carnal knowledge of any woman above the age of ten years against her will, and of a woman-child under the age of ten years with or against her will. See State v. Dancy, 83 N.C. 608, 609 (1880) (quoting 1 Hale’s P.C. 628); accord State v. Johnston, 76 N.C. 209, 211 (1877).  It is true that William Blackstone, the highly influential commentator on the common law, described rape as the carnal knowledge of a woman by force and against her will.  See Dancy, 83 N.C. at 609 (quoting 4 Bl. Comm. 210).  But Blackstone declined to elucidate the elements of the offense – declaring them “highly improper to be publicly discussed” – and referred the reader to “such criminal treatises as discourse of these matters in detail.”  4 Bl. Comm. 213.  As Perkins notes, Blackstone’s reference to force “was not found in the earlier definition given by Coke, and its use has tended to cause confusion rather than to clarify the law.”  Rollin M. Perkins & Ronald N. Boyce, Criminal Law, 210 (3rd ed. 1982).

A North Carolina statute of 1837 created no new offense, but codified the penalty for any person who shall ravish and carnally know any female of ten years or more by force and against her will or who shall unlawfully and carnally know and abuse any female child under the age of ten years.  N.C. Rev. Code ch. 34, § 5 (1837).  That this was borrowed from Blackstone is supported by the following section, which adopts his euphemism for sodomy: “the crime against nature.”  Id. at § 6.  In 1917, the legislature raised the age of consent from ten to twelve.  1917 N.C. Sess. Laws ch. 29.  Subsequent legislation in 1949 allowed the jury more leeway in recommending a penalty without making “any change in the elements constituting the crime of rape.”  State v. Shackleford, 232 N.C. 299, 302, 59 S.E.2d 825, 827 (1950) (citing 1949 N.C. Sess. Laws ch. 299, § 4).

Introduction of Degrees and Statutory Overhaul

Degrees were introduced in 1974.  1974 N.C. Sess. Laws ch. 1202, § 2.  In 1979, the statutes governing sex crimes were modernized and consolidated into a single new Article 7A.  1979 N.C. Sess. Laws ch. 682, § 1.  First- and second-degree rape both included vaginal intercourse with a person by force and against the will (first-degree requiring aggravating factors).  First-degree rape also included vaginal intercourse with a child twelve years old or less.  Second-degree rape also included vaginal intercourse with a person who was mentally disabled, mentally incapacitated, or physically helpless.  See N.C.G.S. §§ 14‑27.2 (first-degree); 14-27.3 (second-degree) (1979).  This last variation was no innovation: common law rape included intercourse with a sleeping, unconscious, or otherwise incapacitated victim.  See State v. Moorman, 320 N.C. 387, 392, 358 S.E.2d 502, 505-06 (1987).  Hence, our Supreme Court could declare as late as 1987 that “[o]ur rape statutes essentially codify the common law of rape.”  Id. at 392, 358 S.E.2d at 506; see also State v. Locklear, 304 N.C. 534, 539, 284 S.E.2d 500, 503 (1981) (noting that “by force and against the will” in rape and sex offense statutes “means the same as it did at common law”).

In 2003, the legislature created the offense of sexual battery, criminalizing “sexual contact” with another person: (1) by force and against the will, or (2) who is mentally disabled, mentally incapacitated, or physically helpless.  N.C.G.S. § 14-27.5A (2005).  Sexual battery is thus defined in the same terms as second-degree rape, lascivious touching taking the place of vaginal intercourse.  Compare N.C.G.S. § 14-27.22 (rape), with N.C.G.S. § 14-27.33 (sexual battery). Finally, in 2015, responding to concerns from the appellate division over how the statutes were numbered, the legislature overhauled Chapter 14, Article 7A.  See State v. Hicks, 239 N.C. App. 396, 409, 768 S.E.2d 373, 381 (2015).  It divided first-degree rape into two statutes, one pertaining to vaginal intercourse with a person against her will (“forcible rape”) and the other pertaining to vaginal intercourse with a child under the age of thirteen years (“statutory rape”).  See N.C.G.S. §§ 14-27.21 (forcible); 14-27.24 (statutory) (2017).  Second-degree rape was renamed “second-degree forcible rape,” reflecting the fact that there is no second-degree statutory rape.  See N.C.G.S. § 14-27.22.  It thus appears that the crime now designated forcible rape is so named less to describe its essential nature than to distinguish it from carnal knowledge and abuse of a child.

Alston and the “Element” of Force

Numerous cases acknowledge that actual force is not required; that constructive force is sufficient.  See e.g., State v. Penland, 343 N.C. 634, 648, 472 S.E.2d 734, 742 (1996).  It is said the element is present “if the defendant uses force sufficient to overcome any resistance the victim might make.”  State v. Brown, 332 N.C. 262, 267, 420 S.E.2d 147, 150 (1992).  Constructive force is demonstrated by proof of threats or other actions which compel the victim’s submission, and the threats need not be explicit.  State v. Etheridge, 319 N.C. 34, 45, 352 S.E.2d 673, 680 (1987).

In Alston, the defendant and the prosecutrix had a consensual sexual relationship both before and after the contested incident.  On the date in question, she accompanied him to the home of a friend where the defendant had intercourse with her; she testified she did not run away because she was afraid of him.  Alston, 310 N.C. at 403, 312 S.E.2d at 473.  Upon review, our Supreme Court found insufficient evidence of force.  Though the prosecutrix might have been justifiably afraid of the defendant, “such general fear was not sufficient to show that the defendant used the force required to support a conviction of rape.”  Alston, 310 N.C. at 409, 312 S.E.2d at 476.

Subsequent decisions have eroded Alston’s precedential value, and the case is more often distinguished than relied upon.  See State v. Etheridge, 319 N.C. 34, 47, 352 S.E.2d 673, 681 (1987) (limiting Alston’s “general fear” theory to its facts); State v. Strickland, 318 N.C. 653, 656, 351 S.E.2d 281, 283 (1987) (same); cf. State v. Brown, 332 N.C. 262, 268, 420 S.E.2d 147, 150 (1992) (“Alston arose upon evidence so peculiar that the decision in that case may well be sui generis.”). In Brown, in particular, our Supreme Court expressly deferred any decision on “whether the actual physical force which will establish the force element of a sexual offense may be shown simply through evidence of the force inherent in the sexual act at issue.”  Brown, 332 N.C. at 269, 420 S.E.2d at 151; but see State v. Raines, 72 N.C. App. 300, 324 S.E.2d 279 (1985).

As noted above, J.U. involved a juvenile petition for sexual battery.  The petition alleged that J.U. “unlawfully [and] willfully engage[d] in sexual contact with [B.A.] by touching [her] vaginal area, against the victim[’]s will for the purpose of sexual gratification.” In the Matter of J.U., 384 N.C. at 624, 887 S.E.2d at 864.  The Court of Appeals found the petition invalid for failure to allege force.  Our Supreme Court disagreed.  Most broadly, it attacked the common law rule that a defective indictment divests the trial court of jurisdiction as “‘an obsolete rule that detrimentally impacts the administration of justice.’”  Id. at 623, 887 S.E.2d at 863 (quoting State v. Rankin, 371 N.C. 885, 919, 821 S.E.2d 787 (2018) (Martin, C.J., dissenting)).  Addressing the issue left unresolved in Brown, the Court said, “one cannot engage in nonconsensual sexual contact with another person without the application of some ‘force,’ however slight.”  Id. at 625, 887 S.E.2d at 864.  Finally, the Court found that, by alleging a nonconsensual touching, “the petition asserted a fact from which the element of force was, at the very least, ‘clearly inferable.’”  Id.

The conclusion that the petition in J.U. sufficiently alleged the element of force diminishes somewhat the impact of the alternative rationale: that force is inherent in any nonconsensual sexual contact.  But the latter rationale may have greater implications for the State’s evidence of forcible rape in future cases.  As Perkins notes, “the better view is that ‘force’ is not truly speaking an element of the crime [rape] itself.”  Perkins, Criminal Law, 211.  To be sure, J.U. does not say that force is not an element of forcible rape.  But in holding that force need not be alleged because one simply cannot engage in nonconsensual sexual contact without some degree of force, our Supreme Court has come some way toward concluding that “by force and against the will” means nothing more than without consent.