holding that convictions of three separate offenses all arising out of the “same criminal transaction” did not violate double jeopardy and upholding defendant’s convictions of statutory rape, incest, and taking indecent liberties with a child for each episode of intercourse with his daughter
How later courts described this case
- holding that convictions of three separate offenses all arising out of the “same criminal transaction” did not violate double jeopardy and upholding defendant’s convictions of statutory rape, incest, and taking indecent liberties with a child for each episode of intercourse with his daughter
- supporting this interpretation and applying these statutes to a criminal trial based on rape and other sexual offenses
- stating that the indecent liberties statute is intended to cover a broad range of behavior
- The North Carolina Supreme Court held that sexual activity between an adult and their child is unique because “the parent wields authority as another assailant might wield a weapon” and that a parent’s authority alone may compel a child into submission.
Written by the judges who cited it.
The opinion
Justice WEBB
dissenting.
I dissent from that portion of the majority opinion which holds that State v. Alston, 310 N.C. 399 , 312 S.E. 2d 470 (1984), does not require that we hold there was insufficient evidence to find the defendant guilty of second degree sexual offense.
In Alston the evidence showed that the defendant had abused the prosecuting witness on past occasions and had, on the occasion in question, forced her to accompany him by twisting her arm. He also threatened to “fix her face.” This Court said the evidence showed that the victim had a general fear of the defendant and that the sexual intercourse was against her will. This Court nevertheless said “absent evidence that the defendant used force or threats to overcome the will of the victim to resist the sexual intercourse alleged to have been rape, such general fear was not sufficient to show that the defendant used the force required to support a conviction of rape.” Id. at 409 , 312 S.E. 2d at 476 . (Emphasis in original.) I do not see how we could have a clearer holding that, although a victim may be justifiably afraid of *52 a person and may testify that she only submitted because of a fear of what he might do if she did not submit, there still must be evidence of force or of a specific threat if she does not submit in order for the jury to find there was force. I do not believe this is consistent with reality but it is the way I believe Alston has to be read.
In this case the majority distinguishes Alston on the ground that the sex act in this case is between a father and his minor son. I agree that a father stands in a position of authority towards his son and that the son could have a legitimate fear of not doing the father’s will. The difficulty for me with the majority’s distinction is that the victim in Alston had an equal fear and yet this Court held there had to be a specific threat. That is the reason I believe the majority’s distinction between this case and Alston is one without a difference.
For the reasons stated in this dissent I believe it is error to overrule State v. Lester, 70 N.C. App. 757 , 321 S.E. 2d 166 (1984), aff’d per curiam, 313 N.C. 595 , 330 S.E. 2d 205 (1985), without overruling Alston .