§ 33.01 RAPE: GENERAL PRINCIPLES

• Jurisdiction: North Carolina

§ 33.01. Rape: General Principles¹

[A] Definition: Common Law

Blackstone defined rape as "carnal knowledge of a woman forcibly and against her will."² "Carnal knowledge" was limited to sexual intercourse, that is, vaginal penetration by a penis.³ At common law, however, a husband who forced his wife to engage in sexual intercourse with him was not guilty of rape.⁴ Common law rape is a general-intent offense.

An ancient English felony statute prohibited sexual intercourse by a male with a "woman child" under the age of 10 years with or without her consent.⁵ This offense has come to be known today as "statutory rape," although it is a feature of the common law of the United States.⁶

[B] Statutes: Traditional and Reform

Modern American rape statutes vary considerably. In recent years, many legislatures have significantly redrafted their rape statutes, often in recognition of, and agreement with, feminist and other critiques of the common law and early statutory definitions of rape.⁷ The Model Penal Code, which was largely drafted in the 1950s and adopted by the American Law Institute in 1962 —well before modern scholarly and public criticism of rape law fully developed—has had 1ittle impact on rape law reform. Given modern sensibilities, the Code's 1962 sexual offense provisions are seen today by most observers as relics that "should be pulled and replaced."⁸ And, indeed, the American Law Institute is currently in the final processes of redrafting the Sexual Offenses section of the MPC.⁹

Traditional (non-reformed) statutes primarily focus on forcible rape; that is, sexual intercourse achieved "forcibly," "against the will" of the female, and "without her consent." As is considered below,¹⁰ these terms —sometimes all contained in a single statute¹¹ — are not necessarily synonymous. Traditional rape statutes, as is the common law, are also gender-specific: only males are legally capable of perpetrating the offense,¹² and only females can be victims of the crime.

Most states now prohibit nonforcible forms of nonconsensual sexual intercourse. For example, sexual intercourse by a male with an unconscious or intoxicated female,¹³ and sexual intercourse procured by "fraud-in-the factum,"¹⁴ will constitute rape. And, increasingly, states have redefined the offense in gender-neutral terms in regard to both the perpetrator and the victim.¹⁵

In the most reformed versions of the law, the offense has been broadened to include all forms of sexual penetration (including nonconsensual oral and anal penetration); the name of the crime has been changed (e.g., "criminal sexual conduct" or "sexual assault"); the offense is divided into degrees; and the marital immunity rule —the common law rule that a husband could not legally rape his wife — has been narrowed or abolished.¹⁶ Some states now also criminalize nonconsensual sexual contact short of penetration.¹⁷

Among the key issues still being heavily debated are questions whether the offense of rape should be defined solely in terms of "nonconsent" (thus dispensing with the requirement of force), whether the burden should be on the person who...