N.C.P.I.—Crim. 207.20A

NOTE WELL: This instruction is intended for use where

there is some evidence that the alleged victim was

asleep or similarly incapacitated. Where there are no

facts supporting the conclusion that the alleged victim

was asleep or otherwise incapacitated, use N.C.P.I.—

Crim. 207.20.

This instruction is valid for offenses committed before

December 1, 2015. For offenses committed on or after

December 1, 2015, use N.C.P.I.—Crim. 207.20A.1.

The defendant has been charged with second degree rape.

For you to find the defendant guilty of this offense, the state must

prove three (four) things beyond a reasonable doubt:

First, that the defendant engaged in vaginal intercourse with the

alleged victim. Vaginal intercourse is penetration, however slight, of the

female sex organ by the male sex organ. (The actual emission of semen

is not necessary.)

Second, that at this time, the alleged victim was asleep or

similarly incapacitated.

(And) Third, that the alleged victim did not consent and it was

against the alleged victim’s will. (Consent induced by fear is not consent

in law.)1

NOTE WELL: Marriage is no longer a defense where

the alleged crime was committed after July 5, 1993.

N.C. Gen. Stat. § 14-27.8 (1993). Do not give the

fourth element for offenses occurring after July 5,

1993.

(And Fourth, that the defendant and the alleged victim were

married but were living separate and apart.)

If you find from the evidence beyond a reasonable doubt that on or

about the alleged date, the defendant engaged in vaginal intercourse

with the alleged victim, that at that time the alleged victim was asleep

or similarly incapacitated, and that the alleged victim did not consent

and it was against the alleged victim’s will, (and that the defendant and

the alleged victim were married but were living separate and apart), it

would be your duty to return a verdict of guilty. If you do not so find or

have a reasonable doubt as to one or more of these things, it would be

your duty to return a verdict of not guilty.2

NOTE WELL: In an appropriate case the judge should

use N.C.P.I.—Crim. 201.10 to charge on an attempted

second degree rape as lesser included offense under

this charge. See N.C.P.I.—Crim. 207.10 for guidance.

NOTE WELL: N.C. Gen. Stat. § 15-144.1 provides that

an indictment for rape in the first degree will support

a verdict of guilty of rape in the first degree, rape in

the second degree, attempted rape or assault on a

female.

But see, S. v. Wortham, 318 N.C. 669 (1987), where

the defendant was indicted for attempted second

degree rape, the North Carolina Supreme Court held

that assault on a female is not a lesser included

offense of attempted rape, because:

(1) An assault on a female is not legally the same as

the overt act required in attempted rape; and

(2) The defendant in the crime of assault on a female

must be first, a male, and second, at least 18

years old. Neither of these is an element of

attempted rape.

Simple Assault may still be an appropriate lesser

included offense. If so, use N.C.P.I.—Crim. 208.40.