Suppose the State is prosecuting a defendant for the sexual assault of a young child. Though the child has been identified by name in the arrest warrant and investigative reports provided to the defendant, the State would prefer not to name the victim in the indictment. May it refer to the victim in that document as “Victim #1”?
Tag Archives: sex crimes
Naming the Victim of a Sexual Assault
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 →
In a recent case, State v. Holloman, the North Carolina Court of Appeals held that the trial court erred by convicting the defendant of both first-degree kidnapping and sexual assault when the sexual assault raised the kidnapping to first-degree. Since the issue is a recurring one, let’s review the rules.
A person is guilty of first-degree kidnapping when he or she
(b) restrains, or
(c) removes from one place to another
(2) a person
(a) without the person’s consent or,
(b) if the person is under 16, without consent of the person’s parent or guardian,
(4) for the purpose of
(a) holding the victim as hostage,
(b) holding the victim for ransom,
(c) using the victim as a shield,
(d) facilitating the commission of a felony,
(e) facilitating flight following the commission of a felony,
(f) doing serious bodily harm to the victim or any other person,
(g) terrorizing the victim or any other person,
(h) holding the victim in involuntary servitude in violation of G.S. 14-43.12,
(i) trafficking another person in violation of G.S. 14‑43.11, or
(j) subjecting or maintaining the victim for sexual servitude in violation of G.S. 14‑43.13 and
(a) does not release the victim in a safe place,
(b) seriously injures the victim, or
(c) sexually assaults the victim.
Element (5) is what elevates a second-degree kidnapping to a first-degree kidnapping. Note that proof beyond a reasonable doubt that the defendant did any one of the acts stated in Element (5) will do it; the State doesn’t have to prove that the defendant did all three acts listed in Element (5).
Here’s a fact pattern for you: The defendant is charged with both first-degree kidnapping and rape. To get to first-degree kidnapping, the State asserts that the defendant failed to release the victim in a safe place and sexually assaulted the victim. The trial judge instructs the jury and provides a special verdict sheet, requiring the jury to specify its findings as to the Element (5) factors that elevate the kidnapping to first-degree. The jury finds the defendant guilty of both first-degree kidnapping and rape. On the verdict sheet, the jury indicates that it found that the defendant failed to release the victim in a safe place and sexually assaulted the victim. Can the defendant be convicted and sentenced for both first-degree kidnapping and rape?
Yes. Because the jury found that the defendant failed to release the victim in a safe place, kidnapping can be elevated to first-degree based on this fact. Thus, there is no double counting of the rape and the defendant can be convicted and sentenced for both offenses. State v. Williams, 201 N.C. App. 161, 181, 186 (2009).
Let’s tweak the fact pattern: Same facts as above but now assume that no special verdict form is submitted. The jury finds the defendant guilty of both first-degree kidnapping and rape. Can the defendant be convicted and sentenced for both offenses?
No. In fact this is what happened in Holloman. In that case, the court of appeals explained that since the jury didn’t specify its basis for finding the defendant guilty of first-degree kidnapping, the court was required to “construe the ambiguous verdict in favor of defendant and assume that the jury relied on defendant’s commission of the sexual assault in finding him guilty of first-degree kidnapping.” Slip op. at 11-12 (quotation omitted). In this situation, the options for the trial judge are:
- reduce the first-degree kidnapping to second-degree kidnapping and sentence for second-degree kidnapping and rape; or
- enter judgment on first-degree kidnapping and arrest judgment on the rape.
Holloman, slip op. at 12 (so instructing the trial court on remand); see also State v. Freeland, 316 N.C. 13, 20–24 (1986) (multiple punishment would violate double jeopardy); State v. Mason, 317 N.C. 283, 292–93 (1986) (following Freeland); State v. Daniels, 189 N.C. App. 705, 709–10 (2008) (same).
Consider another twist: Suppose the State’s evidence shows that the defendant committed two sexual assaults, a rape and a first-degree sexual offense. The trial court gives a special verdict sheet. The jury finds the defendant guilty of all offenses and indicates that first-degree kidnapping was elevated because of both sexual assaults. Can the defendant be convicted and sentenced for both first-degree kidnapping and rape?
Yes. In this instance, the first-degree sexual offense can be used to elevate kidnapping to first-degree. Since the rape isn’t an element of the kidnapping conviction, it can stand alone as a separate conviction. State v. Belton, 318 N.C. 141, 162–65 (1986).
One final twist: Suppose the defendant is charged with first-degree kidnapping and assault inflicting serious bodily injury. The State’s theory of first-degree kidnapping is that the defendant seriously injured the victim. If the jury finds the defendant guilty of both offenses, can the defendant be convicted and sentenced for both?
Yes. The North Carolina Court of Appeals has held that if a defendant is convicted of assault inflicting serious bodily injury and first-degree kidnapping that was elevated because of serious injury inflicted on the victim, there is no double jeopardy bar to punishing the defendant for both offenses. Williams, 201 N.C. App. at 181–82. The court reasoned that the felonious assault conviction required proof of serious bodily injury, a greater level of injury than required for Element (5) of first-degree kidnapping. Id.
Over the years I’ve been asked a bunch of times whether forced self-penetration constitutes a “sexual act” supporting a conviction for forcible sexual offense. Until recently, we had no clear answer in North Carolina. However, the North Carolina Court of Appeals recently addressed the issue, holding that this conduct can support a sexual offense conviction.
In State v. Green, the defendant was charged with first-degree sexual offense (a B1 felony). The evidence showed that the defendant pointed a gun at the victim’s head and ordered her to undress, insert her fingers into her vagina, and “play with herself.” She complied. After he was convicted, the defendant appealed, arguing that the charge should have been dismissed. Specifically, he asserted that he didn’t engage in a sexual act with the victim because he never physically touched her.
First-degree sexual offense requires, in part, that the defendant engage in a “sexual act” with the victim. Jessica Smith, North Carolina Crimes: A Guidebook on the Elements of Crime 232 (7th ed. 2012). That term includes cunnilingus, analingus, fellatio, anal intercourse, and insertion of “any object” into another’s genital or anal opening. Id.
The Green Court began by noting that the issue was one of first impression in North Carolina. It added however that decisions in Florida and California have determined that such conduct was covered by analogous sex crimes statutes. It went on to reject the defendant’s argument that since the victim touched herself, he did not engage in a sexual act with her:
While defendant did not physically touch [the victim], he was “was “involved” in that he coerced her to touch herself. Defendant was not merely an observer or bystander, but rather he participated in the action by directing [the victim]. Given that the text of North Carolina statutes do not explicitly exclude instances such as the one in this case and the persuasive trend in other courts is to recognize coerced self-penetration as a sexual offense, we hold that the act of forcing a victim to self-penetrate constitutes “engag[ing] in a sexual act … with another person … and against the will of the other person.” Defendant’s assertion that he did not engage in a sexual act with [the victim] because he did not make physical contact with her therefore fails.
Slip Op. at p. 14 (citation omitted).
Closing the Courtroom in Sex Crime Trials
A recent decision by the court of appeals illustrates the procedural pitfalls of a common practice: closing the courtroom during the testimony of the victim of an alleged sex crime.
This practice is motivated by the best of intentions. The purpose is to spare the victim the embarrassment of discussing the intimate details of a sexual assault in front of a roomful of onlookers. There is also statutory support for the practice. G.S. 15-166 provides that: “In the trial of cases for rape or sex offense or attempt to commit rape or attempt to commit a sex offense, the trial judge may, during the taking of the testimony of the prosecutrix, exclude from the courtroom all persons except the officers of the court, the defendant and those engaged in the trial of the case.”
The statute suggests that the judge has an absolute right to close the courtroom. However, the defendant has a Sixth Amendment right to a “public trial,” and the public may also have a First Amendment right of access to court proceedings. As a result, a judge may not rely solely on G.S. 15-166 to support an order closing the courtroom. Instead, the judge must consider four points identified in Waller v. Georgia, 467 U.S. 39 (1984) (holding that a trial judge improperly closed the courtroom during the entirety of a suppression hearing in a RICO case based on concerns about the publication of recordings that were played only during a small portion of the hearing). The four considerations are:
- Whether there is an “overriding interest” that would be harmed by allowing the courtroom to remain open
- That any closure “must be no broader than necessary” to protect the overriding interest
- That “the trial court must consider reasonable alternatives to closing the proceeding”
- In ordering a closure, the trial court “must make findings adequate to support” its ruling
In State v. Rollins, a case the court of appeals decided last week, the defendant was charged with breaking into his ex-girlfriend’s house and raping her. As she took the stand, the state asked that the courtroom be closed, citing G.S. 15-166. Over the defendant’s objection, the trial judge granted the request, stating “I don’t know that there is any case law” regarding the closure of the courtroom and describing the decision as “a discretionary call.”
After the defendant was convicted, he appealed, and the court of appeals found that the trial judge failed to make any findings in support of his decision, in violation of the fourth requirement of Waller. The court stated that making “detailed findings” is the “better course” but that at a minimum, a court must set forth its “basic rationale” for closing court. (The court discussed cases from other jurisdictions on this issue, some of which concluded that when the rationale is apparent, specific findings are superfluous.) The court determined “that the proper remedy is to remand this case for a hearing on the propriety of the closure.” Rollins is a helpful reminder and clarification regarding the necessary procedures associated with closing the courtroom.
Besides Rollins, the other significant cases in this area include State v. Jenkins, 115 N.C. App. 520 (1994) (holding that the trial court erred where it “made no findings of fact to support the closure during the [victim’s] testimony”), and Bell v. Jarvis, 236 F.3d 149 (4th Cir. 2000) (en banc) (applying AEPDA deference and concluding that a state MAR court’s rejection of the defendant’s claim that he received ineffective assistance of counsel when his appellate lawyer failed to appeal the trial court’s closure of the courtroom during the victim’s testimony; the Fourth Circuit ruled that the trial court’s “limited” findings were sufficient in the context of a child sexual abuse trial in which the justification for closing the courtroom was strong and apparent). For those interested in a broader background, my colleague Michael Crowell has a good paper on public access to court proceedings and records here.