N.C.P.I.—Crim. 207.65

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. 207.65A.

The defendant has been charged with second-degree sexual offense.

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 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 contact between the mouth or lips 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 alleged victim

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

person suffers from [intellectual disability] [mental disorder] and

this [an intellectual disability] [a mental disorder] temporarily or

permanently renders the person substantially incapable of

(1) [appraising the nature of the person’s conduct]

(2) [resisting a sexual act]

(3) [communicating unwillingness to submit to a sexual act.]]

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

when, due to any act committed upon the person, 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].]

(c) [physically helpless. A person is physically helpless if that person

is

(1) [unconscious]

(2) [physically unable to resist a sexual act]

(3) [physically unable to communicate unwillingness to submit to

a sexual act].]

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 a sexual act with the alleged

victim and that at that time the alleged victim [had a mental disability] [was

mentally incapacitated] [was 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.

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 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, 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.