stating that “ Toy force and against the will of the other person’ as used in N.C.G.S. § 14-27.5(a)(1) has the same meaning as it did at common law when it was used to describe an element of rape” and that the element is present if the defendant “uses force sufficient to overcome any resistance the victim might make”
How later courts described this case
- stating that “ Toy force and against the will of the other person’ as used in N.C.G.S. § 14-27.5(a)(1) has the same meaning as it did at common law when it was used to describe an element of rape” and that the element is present if the defendant “uses force sufficient to overcome any resistance the victim might make”
- holding that the State introduced substantial evidence of the defendant’s use of force, even though the victim initially believed the assailant was a nurse, when the defendant entered the victim’s hospital room, pulled away her bed clothing and gown, pushed her panties aside, and touched her vagina
- stating that the “requisite force may be established either by actual, physical force or by constructive force in the form of fear, fright, or coercion”
Written by the judges who cited it.
The opinion
Justice FRYE
concurring.
I concur in the opinion of the majority, but write separately because this case presents an excellent opportunity for this Court to say explicitly what I believe is already implicit in our law: the elements of force and lack of consent in rape and sexual offense cases may be satisfied when the victim demonstrates, as in this case, that the attack was carried out by surprise. 1
The phrase, “by force and against the will of another person,” found in our state’s rape and sexual offense statutes “means the same as it did at common law when it was used to describe some of the elements of rape.” State v. Locklear, 304 N.C. 534, 539 , 284 S.E.2d 500, 503 (1981); see N.C.G.S. §§ 14-27.2 to -27.5 (1988). At common law, the elements of force and lack of consent for the crime of rape were implied in law “upon the mere showing of sexual intercourse with a person who is asleep, unconscious, or otherwise incapacitated and therefore could not resist or give *275 consent. ... In such a case sexual intercourse with the victim is ipso facto rape because the force and lack of consent are implied in law.” State v. Moorman, 320 N.C. 387, 392 , 358 S.E.2d 502, 505-06 (1987); see State v. Dillard, 90 N.C. App. 318, 322 , 368 S.E.2d 442, 445 (1988) (force and lack of consent implied in law when sexual offense perpetrated upon a victim who is sleeping or similarly incapacitated).
The teaching of the common law rule is clear: force and lack of consent may be implied when the circumstances surrounding the attack are such that the victim cannot resist or give consent. A surprise attack, as in this case, certainly fits within this commonsense rule. The circumstances surrounding the attack in this case, for example, were such that the victim could not resist or give consent. By the time she realized what was happening, the sexual offense was complete. Allowing an attacker to escape justice where the attack is carried out by surprise, although without actual force, not only would be morally indefensible, but would also fly in the face of the well-settled common law rule of implied force.
The “surprise theory” of implied force is certainly not new. More than six decades ago, the Supreme Court of Missouri held that the force element of that state’s rape statute was satisfied by a surprise attack of a physician against a female patient. State v. Atkins, 292 S.W. 422 (Mo. 1926). In Atkins , the victim visited the physician to replace the bifocal lenses in her eyeglasses. Id. at 423 . During an examination to determine the cause of her eye trouble, the defendant put the victim’s heels in the stirrups of a chair, drew her legs apart, pressed against her stomach and sides, and removed her bloomers. Id. Embarrassed, the victim closed her eyes and covered them with her arms; the defendant then “began to press against her sides, and then the prosecutrix felt something press against her private parts.” Id. The defendant argued that he could not be convicted of rape because the “alleged act of ravishing was not forcible.” Id. at 425 . The court disagreed.
If it is rape under our statutes for a man to have illicit sexual connection with a woman while she is asleep, and incapable of consenting, when no more force is used than is necessary to effect penetration with the consent of the woman, we are unable to see why it is not also rape for a man to have improper sexual connection with a woman by accomplishing penetration through surprise, when she is awake, but utterly *276 unaware of his intention in that regard. In such case the woman is incapable of consenting, because she has no opportunity to give consent any more than has a sleeping woman.
Id. at 426 ; see also People v. Borak, 13 Ill. App. 3rd 815, 821, 301 N.E.2d 1, 5 (1973) (force implied when “rape or deviate sexual acts proscribed by statute are accomplished under the pretext of medical treatment when the victim is surprised, and unaware of the intention involved”); 75 C.J.S. Rape § 16 (1952) (“[B]oth at common law and under statutory provisions, if [the victim] is deceived by fraud or surprise as to the act perpetrated on her, it is rape, although she makes no resistance.”).
In sum, I believe it is already implicit in our law that the force and lack of consent elements of rape and sexual offense can be satisfied when the attack, as here, is carried out by surprise. I believe it is time to say so explicitly.
. I realize that this defendant’s conviction cannot be upheld on a “surprise” theory because this theory was not submitted to the jury. However, given the importance of this issue and the fact that this theory was briefed and argued by both parties, I believe it to be a proper subject for our consideration.