N.C.P.I.—Crim. 207.60

NOTE WELL: The crime of sexual offense covers

sexual acts other than vaginal intercourse and applies

regardless of the gender of the defendant or the

alleged victim.

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. 207.60A.

The defendant has been charged with second degree sexual

offense.

For you to find the defendant guilty of second degree sexual

offense, the state must prove three 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 the 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.

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 at law).

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 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.3

NOTE WELL. In an appropriate case the judge should

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

second degree sexual offense as a lesser included

offense.

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, 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.