N.C.P.I.—Crim. 207.20A.1

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 on or

after December 1, 2015. For offenses committed

before December 1, 2015, see N.C.P.I.-Crim. 207.20A.

NOTE WELL: For offenses committed on or after

December 1, 2019, N.C.G.S. § 14-27.20 defines

“against the will of the other person” as either: (1)

without the consent of the other person or (2) after

consent is revoked by the other person, in a manner

that would cause a reasonable person to believe

consent is revoked. For the period between December

1, 2015 and December 1, 2019, the consent element

of these offenses would use the following language:

“that the alleged victim did not consent, and it was

against the alleged victim’s will.”

The defendant has been charged with second degree forcible rape.

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

prove three 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.

NOTE WELL: With regard to the Third element below,

for offenses committed before December 1, 2019,

delete the italicized language.

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

against the alleged victim’s will,that is, that the intercourse was

[without consent of the alleged victim] [after consent was revoked by

the alleged victim, in a manner that would cause a reasonable person to

believe consent was revoked] (Consent induced by fear is not consent in

law.) 1

NOTE WELL: Marriage is not a defense to this offense.

N.C. Gen. Stat. § 14-27.34 (2015).

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, 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.