In the Matter of T.W., 221 N.C. App. 193 (2012)

The trial court erred by denying the juvenile’s motion to dismiss the petition for second degree sex offense under G.S. 14-27.5 because the State failed to prove the element of force. The juvenile instigated and engaged in various sexual activities with other boys around his age. While the boys may have participated willingly initially, when they tried to say “no,” the juvenile threatened to disclose their secrets (e.g., bedwetting) and the sexual conduct. He did not inflict or threaten physical harm. The juvenile was adjudicated delinquent for the offense of indecent liberties between minors, three counts of second degree sexual offense, and three counts of crimes against nature. On appeal the juvenile challenged only the second degree sexual offense adjudications, arguing that the state failed to prove either actual or constructive force, a necessary element of the offense. The court held that coercion by threatening to disclose other children’s embarrassing secrets and their sexual conduct was not sufficient to establish constructive force. Except when the abuse is by a parent (or someone in a comparable relationship to a child), the “force” element of second degree sex offense requires proof of either actual or threatened physical harm. When a parent uses his position of power to force his child to engage in sexual acts, proof of neither actual nor threatened physical harm is required, because the threat is inherent in the relationship. That kind of relationship did not exist in this case.