Is Force an Element of Forcible Rape?
The answer would seem to be obvious. A person is guilty of forcible rape if the person engages in vaginal intercourse with another person by force and against the will of the other person. N.C.G.S. §§ 14-27.21 (first-degree); 14-27.22 (second-degree). Our Supreme Court has, at least once, found insufficient evidence of “the element of force” and reversed a rape conviction on that basis. See State v. Alston, 310 N.C. 399, 408, 312 S.E.2d 470, 476 (1984). Our Supreme Court recently held, however, that a juvenile petition for sexual battery was not defective for failure to allege force. “[O]ne cannot engage in nonconsensual sexual contact,” the Court said, “without the application of some ‘force,’ however slight.” In the Matter of J.U., 384 N.C. 618, 625, 887 S.E.2d 859, 864 (2023). The requisite force, in other words, is inherent in the act. The significance of that holding transcends its context: juvenile petitions are held to the same standards as indictments, which generally must allege all the elements, and misdemeanor sexual battery is statutorily defined using the same terms as forcible rape. This post examines the element of force in cases of rape.
Common Law and Early Statutes
At common law, rape was defined as the carnal knowledge of any woman above the age of ten years against her will, and of a woman-child under the age of ten years with or against her will. See State v. Dancy, 83 N.C. 608, 609 (1880) (quoting 1 Hale’s P.C. 628); accord State v. Johnston, 76 N.C. 209, 211 (1877). It is true that William Blackstone, the highly influential commentator on the common law, described rape as the carnal knowledge of a woman by force and against her will. See Dancy, 83 N.C. at 609 (quoting 4 Bl. Comm. 210). But Blackstone declined to elucidate the elements of the offense – declaring them “highly improper to be publicly discussed” – and referred the reader to “such criminal treatises as discourse of these matters in detail.” 4 Bl. Comm. 213. As Perkins notes, Blackstone’s reference to force “was not found in the earlier definition given by Coke, and its use has tended to cause confusion rather than to clarify the law.” Rollin M. Perkins & Ronald N. Boyce, Criminal Law, 210 (3rd ed. 1982).
A North Carolina statute of 1837 created no new offense, but codified the penalty for any person who shall ravish and carnally know any female of ten years or more by force and against her will or who shall unlawfully and carnally know and abuse any female child under the age of ten years. N.C. Rev. Code ch. 34, § 5 (1837). That this was borrowed from Blackstone is supported by the following section, which adopts his euphemism for sodomy: “the crime against nature.” Id. at § 6. In 1917, the legislature raised the age of consent from ten to twelve. 1917 N.C. Sess. Laws ch. 29. Subsequent legislation in 1949 allowed the jury more leeway in recommending a penalty without making “any change in the elements constituting the crime of rape.” State v. Shackleford, 232 N.C. 299, 302, 59 S.E.2d 825, 827 (1950) (citing 1949 N.C. Sess. Laws ch. 299, § 4).
