N.C.P.I.—Crim. 207.25A

NOTE WELL: This instruction is valid for offenses committed on or

after December 1, 2015. For offenses committed before

December 1, 2015, use N.C.P.I.—Crim. 207.25.

NOTE WELL: For offenses committed on or after December 1,

2019, N.C.G.S. § 14-27.20(2) defines “mentally incapacitated” as

a victim who due to any act is rendered substantially incapable

of either appraising the nature of his or her conduct, or resisting

the act of vaginal intercourse or a sexual act. For the period

between December 1, 2018 and December 1, 2019,”mentally

incapacitated” is defined as a victim who due to (i) any act

committed upon the victim or (ii) a poisonous or controlled

substance provided to the victim without the knowledge or

consent of the victim is rendered substantially incapable of

either appraising the nature of his or her conduct, or resisting the

act of vaginal intercourse or sexual act.

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 the alleged victim

(A) had a mental disability. A person has a mental disability if the person

suffers from [an intellectual disability] [a mental disorder] and this

[intellectual disability] [mental disorder] temporarily or permanently

renders the person substantially incapable of [appraising the nature

of the person’s conduct] [resisting the act of vaginal intercourse]

[communicating unwillingness to submit to the act of vaginal

intercourse] [resisting a sexual act]1.]2

NOTE WELL: With regard to element (b) below, for offenses

committed on or after December 1, 2018 and before December

1, 2019, delete “any act” and substitute the following

language: [any act committed upon the person] [a

poisonous3 or controlled substance provided to the person

without their knowledge or consent].

(B) [was mentally incapacitated. A person is mentally incapacitated

when, due to any act, the person is rendered substantially incapable

of [appraising the nature of the person’s conduct] [resisting the act

of vaginal intercourse] [resisting a sexual act].]4

(C) [was physically helpless. A person is physically helpless if the person

is [unconscious] [physically unable to resist an act of vaginal

intercourse] [physically unable to communicate unwillingness to

submit to an act of vaginal intercourse] [physically unable to resist a

sexual act].]5

And Third, that the defendant knew or should reasonably have known

that the alleged victim [had a mental disability] [was mentally incapacitated]

[was physically helpless.]

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 and at that time

(A) [the alleged victim suffered from [an intellectual disability] [a mental

disorder] and as a result was [temporarily] [permanently] rendered

so substantially incapable of [appraising the nature of the alleged

victim’s conduct] [resisting an act of vaginal intercourse]

[communicating unwillingness to submit to an act of vaginal

intercourse] [resisting a sexual act] as to be mentally disabled,]

(B) [the alleged victim was so substantially incapable of [appraising the

nature of the alleged victim’s conduct] [resisting an act of vaginal

intercourse] [resisting a sexual act] as to be mentally incapacitated,]

(C) [the alleged victim was so physically unable to [resist an act of

vaginal intercourse] [communicate unwillingness to submit to an act

of vaginal intercourse] [resist a sexual act] as to be physically

helpless]

and that the defendant knew or should reasonably have known that the

alleged victim [had a mental disability] [was mentally incapacitated] [was

physically helpless], it would be your duty to return a verdict of guilty. If you

do not so find or have a reasonable doubt about one or more of these things,

it would be your duty to return a verdict of not guilty.6

NOTE WELL: In an appropriate case the judge should use

N.C.P.I.—Crim. 201.10 to charge on attempted second degree

rape as a lesser included offense under this charge, and the judge

should similarly use N.C.P.I.—Crim. 208.70 (Assault on a Female)

where appropriate.

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.