N.C.P.I.—Crim. 207.40B

For you to find the defendant guilty of first degree forcible sexual

offense, the State must prove four things beyond a reasonable doubt:

First, that the defendant engaged in a sexual act with the alleged victim.

A sexual act means

(a) [cunnilingus, which is any touching, however slight, by the lips or

tongue of one person to any part of the female sex organ of

another.]1

(b) [fellatio, which is any touching by the lips or tongue of one person

and the male sex organ of another.]2

(c) [analingus, which is any touching by the lips or tongue of one

person and the anus of another.]

(d) [anal intercourse, which is any penetration, however slight, of the

anus of any person by the male sexual organ of another.]

(e) [any penetration, however slight, by an object into the [genital]

[anal] opening of a person's body.]

NOTE WELL: N.C. Gen. Stat. § 14-27.1(4) provides that it shall be

an affirmative defense to the fifth type of sexual act in (E) above

that the penetration was for an accepted medical purpose. If there

is evidence of such a purpose, instruct accordingly at the end of

the charge and in the mandate. See N.C.P.I.—Crim. 306.10 for an

instruction on Accepted Medical Purpose.

Second, that the defendant used or threatened to use force sufficient to

overcome any resistance the alleged victim might make. (The force necessary

to constitute sexual offense need not be actual physical force. Fear or coercion

may take the place of physical force.)

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

alleged victim’s will. (Consent induced by fear is not consent at law).

And Fourth, that the defendant

(a) [[employed] [displayed]

(1) [a dangerous or deadly weapon.] [(Name weapon) is a

dangerous or deadly weapon.] [A dangerous or deadly

weapon is a weapon which is likely to cause death or serious

bodily injury. (In determining whether the particular object is

a dangerous or deadly weapon, you should consider the

nature of the object, the manner in which it was used, and

the size and strength of the defendant as compared to the

alleged victim.)]]

(2) [an object that the alleged victim reasonably believed was a

dangerous or deadly weapon.3 A dangerous or deadly weapon

is a weapon which is likely to cause death or serious bodily

injury. (In determining whether the particular object is a

dangerous or deadly weapon, you should consider the nature

of the object, the manner in which it was used, and the size

and strength of the defendant as compared to the alleged

victim.)]]

(b) [inflicted serious personal injury4 upon the [the alleged victim]

[another person.]

(c) [was aided or abetted by one or more other persons. A defendant

would be aided or abetted by another person if that person [was

present at the time the sexual offense was committed and

knowingly [advised] [encouraged] [instigated] [aided] the

defendant to commit the crime] (or) [though not physically present

at the time the sexual offense was committed, shared the

defendant's criminal purpose and, to the defendant's knowledge,

was aiding or was in a position to aid the defendant at the time the

sexual offense was committed.]

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

about the alleged date, the defendant engaged in a sexual act with the alleged

victim and that the defendant did so by [force] [threat of force] and that this

was sufficient to overcome any resistance which the alleged victim might

make, that the alleged victim did not consent, and it was against the alleged

victim’s will, and that the defendant

(a) [employed] [displayed] a [weapon] [an object] (and that [this was]

[the alleged victim reasonably believed that this was] a dangerous

or deadly weapon).]

(b) [inflicted serious personal injury upon [the alleged victim] [another

person]].

(c) [was aided and abetted by [another person] [other persons].]

it would be your duty to return a verdict of guilty of first degree forcible sexual

offense. If you do not so find or have a reasonable doubt as to one or more of

these things, you would not return a verdict of guilty of first degree forcible

sexual offense but would consider whether the defendant is guilty of second

degree forcible sexual offense. Second degree forcible sexual offense differs

from first degree sexual offense only in that it is not necessary for the state

to prove beyond a reasonable doubt that the defendant

(a) [[employed] [displayed] a [dangerous or deadly weapon] [an

object which the alleged victim reasonably believed was a

dangerous or deadly weapon]]

(b) [inflicted serious personal injury upon [the alleged victim] [another

person]

(c) [was aided and abetted by [another person] [other persons].]

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

about the alleged date, the defendant engaged in a sexual act with the alleged

victim and that the defendant did so by force or threat of force and that this

was sufficient to overcome any resistance which the alleged victim might

make, 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 of

second degree forcible sexual offense. 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.5

NOTE WELL: In an appropriate case the judge should use

N.C.P.I.—Crim. 207.40A to charge on attempted first and second

degree sexual offense as lesser included offenses under this

charge.

NOTE WELL: If a party requests an instruction on Assault on a Female,

see State v. Martin, 222 N.C. App. 213 (2012), where the defendant

was convicted of two counts of first-degree sexual offense, and the

North Carolina Court of Appeals held that assault on a female is not a

lesser included offense of first-degree sexual offense, because to convict

for first-degree sexual offense, it need not be shown that the victim is a

female, that the defendant is a male, or that the defendant is at least

18 years of age.

Simple Assault may still be an appropriate lesser included offense.

If so, use N.C.P.I.—Crim. 208.40.