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.
News Roundup
After more than 25 years, an arrest has been made in the killing of the rapper Tupac Shakur, as AP news reports here. “Pac” died in a drive-by shooting in 1996 in Las Vegas at the age of 25. The suspect is charged in Nevada state court with murder by deadly weapon. Police allege that the man supplied the gun and otherwise assisted in the homicide. The defendant is the last living suspect in the case and has apparently publicly acknowledged his presence at the crime scene and involvement over the years. According to this piece from Time, the arrest is linked to the investigation of another infamous unsolved killing, the murder of Christopher Wallace, a/k/a “the Notorious B.I.G.” He was killed in Los Angeles at age 24 around six months after Tupac. The impact of both men’s short-lived careers on hip-hop can hardly be overstated. Still no word on who shot Biggie Smalls. Read on for more criminal law news.
Case Summaries: N.C. Court of Appeals (Oct. 3, 2023)
This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on October 3, 2023. These summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present.
Alternative Responses to Crisis Calls in North Carolina
Law enforcement and the communities they serve want effective responses to crime and other problems. They want policing that promotes safety and trust. And they want alternative responses for behavioral and social problems—to safely connect people to services that address root causes of behavior while allowing law enforcement to focus on solving and preventing violent and serious crime. While individual police … Read more
Pretrial Release Guide Available
The School of Government has published a new resource on initial appearances and pretrial release. Although any judicial official is authorized to preside at an initial appearance, in most cases that official is a magistrate. This guide addresses pretrial release only in the context of magistrates’ authority and limitations.
News Roundup
Law enforcement officers in Philadelphia arrested more than 50 people Tuesday night after a flash mob ransacked dozens of stores, including Foot Locker, Lululemon, Apple, and at least 18 state-run liquor stores. The looting began after a peaceful protest over a judge’s dismissal of charges against a Philadelphia police officer who shot and killed driver Eddie Irizarry through a rolled-up window after pulling him over for erratic driving. The Police Commissioner said the looters were not associated with the protests, but instead were “criminal opportunists” who launched a coordinated attack. The Associated Press has the story here.
In related news, Target announced earlier that same day that it was closing nine stores in four states because organized retail crime had made operating the stores unsafe and unsustainable. The stores include the East Harlem location in New York City, two locations in Seattle, three in Portland, and three in San Franscisco and Oakland. CNN has the story here.
Keep reading for more criminal law news.
Changes to the Death by Distribution Law
The opioid crisis seems to be getting worse every year. NCDHHS reports that in 2021, over 4,000 North Carolinians died from opioid overdoses, up 22% from the prior year. Most deaths were related to the consumption of fentanyl.
One strategy for addressing the epidemic is punishing those who distribute deadly drugs. In 2019, the General Assembly enacted G.S. 14-18.4, making it a felony to sell a controlled substance that causes the death of a user. The law is commonly known as the death by distribution law. This session, the General Assembly passed a revised version of the law. This post explains the revisions.
2023 Appropriations Act Enacts Significant Court-Related Changes
Several provisions of the 2023 Appropriations Act (H 259) ratified by the General Assembly last week (which is expected to become law on October 3 without the Governor’s signature) affect the judiciary. The biggest news item for judges may be the substantial salary increases included in the two-year budget. At the end of the biennium, salaries for district court judges will have increased by 24 percent (to $162,620) and salaries for superior court judge by 13 percent to ($169,125). The salary for the Chief Justice will increase by 20 percent over this period (from $168,980 to $203,073), and salaries for associate justices and court of appeals judges will have the same percentage increase. Many argue that those kinds of adjustments are long overdue. A 2020 ranking of judicial salaries by the National Center for State Courts placed North Carolina judicial salaries in the bottom half of all states and the District of Columbia. Supreme court associate justice salaries were the lowest of those measured, coming in at number 44. But this post is not about salaries; instead it will focus on other court system changes enacted by H 259.
I’ll start with some different numbers.
Changes Coming to Delinquency Procedure: Transfer and Mental Health Evaluations
Session Law 2023-114 includes many provisions that change the law governing delinquency cases. This is the first in a three-part series of blogs detailing those changes. It covers the changes to the laws that govern transfer of cases to superior court for trial as an adult and the mandate to assess mental health needs before disposition through the comprehensive clinical assessment (CCA) and care review processes. All of the S.L. 2023-114 changes described in this blog will apply to offenses committed on or after December 1, 2023.
News Roundup
On Monday, Illinois became the first state to eliminate cash bail. A provision of the state’s criminal justice reform law was supposed to eliminate the use of cash bail across the state on January 1, but was put on hold after prosecutors and sheriffs in 64 counties filed lawsuits challenging the constitutionality of the law. In a 5-2 ruling in July, the Illinois Supreme Court overturned a ruling by a Kankakee County judge that the law ending cash bail was unconstitutional.
The bill does not limit its application to those newly charged with crimes. Defendants who are currently being held on cash bail are entitled to request a hearing to determine if they should be released. In fact, according to this story, a woman—who is alleged to have assaulted four Chicago police officers on Sunday—was released from custody on the day the cash bail was eliminated.
Keep reading for more criminal law news.