What Is a Sexual Act?

What acts qualify as sexual acts? For North Carolina criminal law purposes, it depends on the context.

The words “sexual act” show up in several places in the General Statutes. In G.S. 14-27.20(4), sexual act is defined as cunnilingus, fellatio, analingus, anal intercourse, or the penetration of any object into the genital or anal opening of another person’s body, but not vaginal intercourse. That definition applies for the purposes of Article 7B of Chapter 14, Rape and Other Sexual Offenses. It makes sense that the definition of sexual act excludes vaginal intercourse in that context because the main purpose of the law is to define the acts that are serious enough to constitute the crime of sexual offense. If the act in question were vaginal intercourse, the appropriate crime would be rape, and so the definition of sexual act there does not include it.

G.S. 14-27.20(5) defines another term, sexual contact, as touching the sexual organ, anus, breast, groin, or buttocks of any person; touching another person with ones own sexual organ, anus, breast, groin, or buttocks; or ejaculating, emitting, or placing semen, urine, or feces upon any part of another person. And that’s significant within Article 7B because for the crimes codified there, mere sexual contacts are not sexual acts; they only wind up qualifying as a less serious crime, misdemeanor sexual battery under G.S. 14-27.33.

Further complicating things (and we’re not even out of Article 7B yet) is the recently enacted crime of sexual contact or penetration under pretext of medical treatment under G.S. 14-27.33A. Despite being codified in Article 7B, that statute includes its own definition of sexual contact focused on the touching of a person’s “intimate parts.” G.S. 14-27.33A(4). It also adds a new defined term, sexual penetration, that includes sexual intercourse (which was probably meant to cover vaginal intercourse), cunnilingus, fellatio, anal intercourse, or the insertion of any object into another’s genital or anal openings—so basically all the acts that could be either rape or sexual offense (minus analingus, apparently).

In a few statutes, the Article 7B definition of sexual act is expressly applied to a crime codified elsewhere—sometimes to say that the crime includes the acts defined in G.S. 27.20(4) (patronizing a prostitute under G.S. 14-205.2), and sometimes to say that it excludes them (taking indecent liberties with a student under G.S. 14-202.4). And some statutes outside of Article 7B use the term sexual act without any reference to the definition in G.S. 14-27.20(4) at all. For example, the definition of “aggravated offense” in the sex offender registration law covers defendants who engage “in a sexual act involving vaginal, anal, or oral penetration.” G.S. 14-208.6(1a). Our courts have interpreted sexual act there to include rape, State v. Clark, 211 N.C. App. 60 (2011), which means it’s not a perfect match with the definition from G.S. 14-27.20(4).

Finally, the similar term sexual activity is defined in G.S. 14-190.13(5) to include masturbation; vaginal, anal, or oral intercourse; touching of certain areas, clothed or unclothed; torture or restraint; excretory functions; insertion of a body part into another’s anus or vagina; and lascivious exhibitions of the genitals or pubic area of any person. That definition resides in Article 26 and applies only to certain enumerated offenses listed in that Article (e.g., sexual exploitation of a minor crimes of any degree).

To sum up, there is no universal definition of sexual act or sexual activity in North Carolina law.

The crime for which this issue has arisen the most recently is child abuse by sexual act under G.S. 14-318.4(a2). That statute says that a parent or legal guardian of a child less than 16 years old who commits a sexual act upon the child or allows another to commit a sexual act on the child is guilty of a Class D felony. The law is codified in Article 39, Protection of Minors, and so the definition from Article 7B does not apply as a technical statutory matter. Well, then what definition does apply?

In State v. Wohlers, ___ N.C. App. ___ (2020), a case that Shea summarized yesterday, the defendant was charged with two counts of felonious child abuse by sexual act. The trial court gave a jury instruction based on N.C.P.I.—Criminal 239.55B, which at the time said that a sexual act was “an immoral, improper or indecent touching or act by the defendant upon the child.” The defendant argued that that definition was overbroad, and that under State v. Lark, 198 N.C. App. 82 (2009), and State v. Stokes, 216 N.C. App. 529 (2009), a more restrictive definition limited to the acts listed in G.S. 14-27.20(4) should apply. The Court of Appeals disagreed, noting that the Supreme Court had very recently concluded in State v. Alonzo, 373 N.C. 437 (2020), that the G.S. 14-27.20(4) definition was intended to apply only to the sexual offense crimes included in Article 7B. The trial court in Wohlers therefore did not err by giving an instruction not based on that definition.

But knowing that the Wohlers instruction wasn’t wrong and that the G.S. 14-27.20(4) definition alone isn’t right leaves us wondering about the full definition of a sexual act for purposes of the child abuse law. Is vaginal intercourse covered? What about acts less serious than the acts comprising the G.S. 14-27.20(4) definition—things like sexual contact defined in G.S. 14-27.20(5), or sexual activity defined in G.S. 14-190.13(5)?

It seems to me that the last substantive word on the issue that survives Alonzo comes from State v. Gonzalez, 263 N.C. App. 527 (2019), in which the Court of Appeals navigated a precedential maze from Lark to Stokes to State v. McClamb, 234 N.C. App. 753 (2014), and ultimately concluded that vaginal intercourse is a sexual act within the meaning of G.S. 14-318.4(a2). In McClamb, the court read Lark as standing for the limited principle that fellatio is a covered act, and Stokes to mean that insertion of an object into the victim’s vagina is covered. McClamb, 234 N.C. App. at 758. If those acts are covered, then it stands to reason that the other sexual acts defined in G.S. 14-27.20(4) probably are, too. But there are no cases expressly saying so. N.C.P.I.—Criminal 239.55B already changed once since the version at issue in Wohlers and it may change again as the Committee seeks to reconcile this recent line of cases.

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