Two years ago I wrote a blog post about North Carolina’s unusual stance on rape and consent. In its 1979 decision in State v. Way, 297 N.C. 293 (1979), the North Carolina Supreme Court appeared to take the position that if a woman consents to sexual intercourse and in the middle of the act changes her mind, the defendant is not guilty of rape for continuing to engage in intercourse with her. In my lengthy blog, I suggested ways to distinguish or limit the antiquated approach in Way. This post need not be nearly as long. Last week, the General Assembly enacted Senate Bill 199, which revised the elements of rape and other sexual offenses to recognize the right to revoke consent, whether or not sexual intercourse or another sexual act has begun. If signed by the Governor (the Governor has signed the bill), the law will apply to offenses committed on or after December 1, 2019. Continue reading
Tag Archives: rape
“No” Will Mean “No” in North Carolina
In 1985, Anthony Wyrick sexually assaulted two teenage girls in Charlotte. The police collected semen and other biological evidence but DNA testing was not available at that time and the crime went unsolved. Almost 30 years later, the case came to the attention of the Charlotte-Mecklenburg Police Department’s sexual assault cold case unit. Officers submitted the biological evidence for DNA testing. The results pointed to Wyrick, who lived near the scene of the crime in 1985 and who had since been convicted of an unrelated second-degree rape. Wyrick was eventually arrested, charged, and convicted. His conviction was affirmed last month in State v. Wyrick, which I how I learned of the case. Reading it got me wondering about the status of what is popularly known as the rape kit backlog. Continue reading →
Whether “No” Means “No” in North Carolina
Attention has fallen on North Carolina for a 1979 court decision on withdrawal of consent during sexual intercourse. In State v. Way, 297 N.C. 293 (1979), the state supreme court held under North Carolina’s then-existing rape statutes that if a woman consents to sexual intercourse and in the middle of the act changes her mind, the defendant is not guilty of rape for continuing to engage in intercourse with her. The decision has drawn fierce criticism from the public and in legal circles. The criticism intensified after the General Assembly did not act on a bill introduced this session, Senate Bill 553, which would have permitted withdrawal of consent after intercourse begins consensually. People have asked me whether the apparent holding in Way is still the law in North Carolina. Is it true that a man would not be guilty of rape if he forcibly continued to have sexual intercourse with a woman after she withdrew consent? In my view, that may not be the law in North Carolina. Continue reading →
I just finished reading Jon Krakauer’s Missoula: Rape and the Justice System in a College Town. Not a day has passed since I closed the cover that I haven’t contemplated its harrowing account of the sexual assault scandal that enveloped the town of Missoula, its university (the University of Montana) and its revered football team, the Griz, from 2010 through 2012. The book is a powerful work of investigative journalism that challenged some of my beliefs about the incidence of sexual assault on campus. Continue reading →
In the 2015 case State v. Hicks, __ N.C. App. __, 768 S.E.2d 373 (2015), after holding that the trial court committed plain error in its jury instructions, the N.C. Court of Appeals urged the General Assembly to clarify the relevant law: Continue reading →
Sex Crimes and Penetration
In the recent court of appeals case In re J.F., ___ N.C. App. ___, ___S.E.2d ___ (Nov. 18, 2014), the defendant argued that penetration is an essential element of sexual offense and crime against nature. Following prior case law, the court held that penetration is required for crime against nature, and that in the case presented, the evidence wasn’t sufficient on that issue. Turning to the sexual offense conviction, the court noted that offense covers different types of sexual acts, specifically, cunnilingus, fellatio, analingus, anal intercourse, and the penetration, however slight, by any object into the genital or anal opening of another person’s body. Id. (citing G.S. 14-27.1(4)). In the case before it, the relevant conduct was fellatio, a “touching” act, which the court held doesn’t require penetration. Continue reading →
Sentencing Rules for Rape and Sexual Offense Against a Child by an Adult Offender
In 2008 the General Assembly enacted two new crimes, rape of a child by an adult offender under G.S. 14-27.2A, and sexual offense with a child by an adult under G.S. 14-27.4A. S.L. 2008-117. Both crimes have special sentencing rules and special provisions for lifetime satellite-based monitoring. Today’s post responds to some of the questions I have been getting about those special rules. (Some of these issues were discussed immediately after the law came into effect in John Rubin’s 2008 legislative summary, available here.)
Rape of a child by an adult offender is defined as vaginal intercourse with a child under 13 by a defendant who is at least 18. Sexual offense with a child by an adult offender is defined as engaging in a sexual act (cunnilingus, analingus, fellatio, anal intercourse, or the insertion of any object into another’s genital or anal opening) with a child under 13 by a defendant who is at least 18. There is thus some overlap between these crimes and the “regular” first-degree statutory rape and sexual offense crimes set out in G.S. 14-27.2 and 14-27.4, respectively—and like those crimes, the “adult offender” versions are Class B1 felonies. The adult offender versions are different, however, in that they carry a notably higher punishment than that applicable to an ordinary Class B1 felony under Structured Sentencing.
Before delving into the special rules, I should say at the outset that the adult offender crimes only apply to offenses committed on or after December 1, 2008. For earlier offenses only the regular Class B1 rape and sexual offense crimes could apply. Many times I have received questions about the special sentencing rules for the adult offender versions, only to discover that the acts in question occurred before December 1, 2008 and thus were not properly charged under the new statutes in the first place. I should also note that these rules appear to apply only to the completed crimes; there is no indication that the special provisions apply to attempts or other inchoate crimes.
As for the special rules themselves, both G.S. 14-27.2A and 14-27.4A provide that a person convicted of those crimes must be sentenced to an active punishment of at least 300 months. I read that as a mandatory minimum sentence of imprisonment, supplanting any shorter minimum sentence otherwise applicable to a Class B1 felon according to the sentencing grid. Depending on the defendant’s prior record level that can make for a pretty substantial increase in the sentence. For example, the adult offender mandatory minimum increases the lowest possible (bottom-of-the-mitigated-range) minimum sentence for a first-time offender from 144 months to 300 months—an increase of 13 years. No statute expressly says so, but it seems to me that if the court imposes a 300-month minimum sentence, the corresponding maximum should be determined according to the regular “formula” applicable to a Class B1 reportable sex crime. Thus, for an offense committed on or after December 1, 2011, the maximum would be 120% of the minimum plus 60 months, making the sentence 300–420 months. For an offense committed before December 1, 2011, the maximum would be 120% of the minimum plus 9 months, making the sentence 300–369 months. (For a description of the changes to sex offender sentencing effective December 1, 2011, see this post.) For defendants otherwise eligible for a sentence in excess of the 300-month minimum, just use the regular sentencing grid as usual.
Both adult offender statutes provide that the court can impose a sentence to a term of months even longer than that allowed by the sentence grid, up to and including life imprisonment without parole, if the court finds “egregious aggravation.” The statutes state that egregious aggravation may be found if “the nature of the offense and the harm inflicted are of such brutality, duration, severity, degree, or scope beyond that normally committed in such crimes, or considered in basic aggravation of these crimes, so as to require a sentence to active punishment in excess of that authorized pursuant to [Structured Sentencing].” The term also includes “further consideration of existing aggravating factors where the conduct of the defendant falls outside the heartland of cases even the aggravating factors were designed to cover,” or consideration of the “extraordinarily young age of the victim, or the depraved torture or mutilation of the victim, or extraordinary physical pain inflicted on the victim.” What sort of aggravation rises to the level of egregious aggravation is not entirely clear from the law itself, but the real problem with the statutes is who they charge with the responsibility of making the egregious aggravation determination. Both laws say that the sentencing judge does it, but it would almost certainly run afoul of a defendant’s Sixth Amendment rights to allow such findings—which clearly increase the maximum permissible punishment—to be made by anyone other than the jury. Blakely v. Washington, 542 U.S. 296 (2004) (holding that any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be admitted to by the defendant or submitted to the jury and proved beyond a reasonable doubt).
A trial court judge could perhaps fashion a remedy for the possible constitutional defect by submitting the issue of egregious aggravation to the jury using a special verdict. See State v. Blackwell, 361 N.C. 41 (2006) (speaking approvingly of the special verdict as a way to protect a defendant’s jury trial right after Blakely was decided but before North Carolina’s Blakely fix legislation came into effect). [Author’s note: In State v. Singletary, __ N.C. App. __ (May 3, 2016), the court of appeals cast doubt on a trial court’s authority to fashion a remedy for this constitutional violation by use of a special verdict.]
Finally, the two adult offender statutes are unique in that they require convicted defendants to submit to satellite-based monitoring (SBM) for life upon their release from prison. For other crimes, lifetime SBM does not flow from the crime of conviction, but rather from a separate finding that the offender is a sexually violent predator, a recidivist, or that the conviction offense was an aggravated offense. G.S. 14-208.40A. Both adult offender crimes are “sexually violent offenses” under G.S. 14-208.6(5), meaning they require registration as a sex offender. But there is no provision in the statutes for automatic lifetime registration—raising the odd possibility that a convicted person might be subject to SBM for life but registration for a term of years. Additionally, the adult offender statutes make no mention of automatic lifetime SBM for offenders convicted of attempts, conspiracies, or solicitations to commit those crimes. Those crimes are reportable under G.S. 14-208.6(4)a (attempts) and G.S. 14-208.6(5) (conspiracies and solicitation), but only require SBM if ordered by the court pursuant to the rules applicable to other sexually violent offenses. The special status of the adult offender crimes with respect to SBM is reflected on Form AOC-CR-615, which includes a separate check-box (finding 1.d, near the top of the first page) for defendants convicted of those crimes.
Sexual Assaults: One Conviction or Two?
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).