Under North Carolina criminal law, there are two levels of forcible rape charges—first-degree and second-degree.  Unlike many other states, forcible rape in North Carolina only occurs with respect to vaginal penetration.  Other types of sexual acts, like anal penetration and fellatio, are punished as other violent sex crimes.  As discussed more fully below, because forcible rape offenses are considered “sexually violent offenses,” those who are convicted of these types of crimes will be required to register on North Carolina’s Sex Offender Registry.

Elements of Forcible Rape

To be convicted of first-degree forcible rape, the prosecution must prove the following three elements:

  • The accused engaged in vaginal intercourse
  • By force, and
  • Against the will of the other person

The prosecution must also prove one of the following:

  • The accused threatened to use force or displayed a dangerous or deadly weapon or some article that the other person reasonably believed to be a dangerous or deadly weapon OR
  • The accused inflicted serious personal injury upon the victim or another person OR
  • Committed the act aided or abetted by one or more other persons

“Consent” is generally defined as the giving of permission or expressing agreement for vaginal intercourse. Under a 2018 statutory revision, “consent” now encompasses the right to withdraw consent. North Carolina now defines “against the will of the other person” as either without consent initially or without consent to continue if consent is revoked. Consent must be revoked “in a manner that would cause a reasonable person to believe consent is revoked.”

Note that proof of penetration is required but the slightest penetration is sufficient to sustain a conviction. It is not necessary that the prosecution prove that the vagina was entered or that the hymen was ruptured—the entering of the vulva or labia is sufficient. See State v. Whittemore, 122 S.E 2d 396 (N.C. 1961); see also NCGS §14-27.36.

Second-degree forcible rape is a lesser charge. The prosecution can prove second-degree forcible rape in two ways. First, second-degree forcible rape requires that the prosecution prove that:

  • The accused engaged in vaginal intercourse,
  • By force, and
  • Against the will of the other person

In the alternative, the prosecution can prove second-degree forcible rape by showing:

  • The accused engaged in vaginal intercourse,
  • With a person who has is mentally disabled or who is mentally incapacitated or is physically helpless, AND the person performing the act knows or should reasonably know the other person has a mental disability or is mentally incapacitated or is physically helpless

“Mentally disabled” means a victim who has an intellectual disability or a mental disorder that temporarily or permanently renders the victim substantially incapable of appraising the nature of vaginal intercourse or who is mentally unable to resist the act of vaginal intercourse or who is unable to communicate an unwillingness to submit to the act of vaginal intercourse. “Mentally incapacitated” means a victim who due to any act is rendered substantially incapable of either appraising the nature of his or her conduct or resisting the act of vaginal intercourse or sexual act. A person may be “mentally incapacitated” by voluntarily consuming an impairing substance like alcohol. “Physically helpless” means a victim who is unconscious or who is physically unable to resist or who is unable to communicate an unwillingness to submit to an act of vaginal intercourse. The above-described rules with respect to consent and vaginal penetration apply with equal force to charges of second-degree forcible rape.

Punishments and Penalties

The highest-level felony in North Carolina is a Class A felony. First-degree forcible rape is a Class B1 felony under North Carolina law, which means that if you are convicted, you can be imprisoned for a minimum of 12 years and up to life without parole. Second-degree forcible rape is a Class C felony under North Carolina law, a conviction for which carries a minimum of three and a half years (44 months) imprisonment up to a maximum of 15 years.

Further Punishments: Violent Sex Crimes and the Publicly Available Sex Offender Registry

As noted above, first and second-degree forcible rape is considered “sexually violent offenses.” This means that those who are convicted must register and maintain their registration on North Carolina’s public sex offender registry after their term of incarceration has ended. Registration must be done immediately after a sex offender has obtained a place to live and must be updated every 90 days. An individual must register for a minimum of 30 years, with some offenders being required to register for their entire life. The registry database is available online and in public. Neighbors can identify convicted sex offenders and know where they are living.

Registered sex offenders in North Carolina face various residency restrictions. For example, a sex offender may not knowingly reside within 1,000 feet of a school or childcare center.  Also, children cannot live at or be cared for at a person’s residence when on the sex offender registry. Any change of address must be reported and, if the sex offender leaves North Carolina (even temporarily), he or she may have to register in the new state. In some cases, sex offenders can be subject to court-ordered satellite-based continuous monitoring.

Registered sex offenders in North Carolina also face various employment restrictions. For example, a sex offender cannot have a commercial driver’s license that permits the offender to drive a school bus or a vehicle for passengers.

Legal Defenses to Charges of Forcible Rape

There are three main defenses that can be used to fight a rape charge—innocence, consent, and insanity.


An innocence defense entails asserting legally that the accused did not commit the crime alleged. This is the basic defense for any type of crime.

Depending on the facts underlying the charge, there may be several methods of demonstrating innocence. An alibi defense is one example. With an alibi defense, the accused demonstrates that he or she was at some location other than the location where the alleged forcible rape occurred at the time the rape was alleged to have happened. Types of evidence that can support an alibi defense include witness statements, time-stamped video evidence showing the accused at some other location, and phone or vehicle geospatial-location data. Famously, this was the defense used by some of the Duke University lacrosse players who were accused of raping a dancer at a house near the Duke campus in March 2006. One of the accused players had an alibi placing him at an ATM machine far away when the rape allegedly occurred, supported by a cash receipt, and video from the machine.

The Duke lacrosse rape case also highlights two other potential innocence defenses— misidentification and lack of DNA match. The Duke players asserted that the victim had misidentified them and that the police line-up procedures had been faulty. The players also asserted there was no DNA evidence to indicate rape or sexual assault occurred or that they were even present. In most rape cases, under strict medical and legal procedures, the victim undergoes an evidence-gathering procedure where samples of semen and other fluids are recovered from the bodily areas where the sexual assault occurred. DNA analysis is conducted and can be compared to the DNA of the accused. If the DNA does not match, that may be sufficient to defeat the charges.

A misidentification defense may also be shown if it can be demonstrated that the victim had no capacity to know who their attacker was. An example where this defense might be available is if the victim was under the influence of drugs and/or alcohol to such a degree that he or she cannot reasonably identify the accused.

Finally, depending on the facts of the case, non-penetration or non-vaginal penetration may be a defense to a charge of forcible rape. However, as discussed below, other sex acts that are forcible and non-consensual can be prosecuted under different statutory provisions of the North Carolina criminal code.


Under North Carolina law, consent by the victim is a complete defense to a charge of forcible rape. This is true unless consent is induced by fear of violence or if the victim lacks the legal capacity to give consent. Minors lack the ability to give consent—any consent given by a minor is not legally valid. Additionally, persons with mental illnesses or disabilities and those that are mentally impaired cannot give consent. As discussed above, consent can be revoked at any point during sexual activity.


Insanity is a legal defense that can be asserted to rebut a charge of forcible rape. The burden is on the accused to prove insanity and is usually reserved for those suffering mental disabilities or cognitive illnesses that prevent them from understanding that forcible rape is criminal. The insanity defense goes to the issue of proving that the accused had some mental impairment that affected their ability to make moral judgments.

The insanity defense is difficult to prove in North Carolina and, if successful, does not necessarily mean that the accused will avoid incarceration. Generally, a person found to be not guilty by reason of insanity will be ordered to be held in a medical facility for treatment and the term of confinement can be indefinite.

What are NOT Defenses to Charges of Forcible Rape?

There are several factual matters that are NOT legal defenses to the charge of forcible rape. For example, it is NOT a defense that the parties involved are (or were) married at the time. It is also not a defense that there was no emission of semen. Finally, it is NOT a defense for the accused to claim that he or she had a “reasonable belief” that the alleged victim was consenting. See State v. Moorman, 320 N.C. 387 (1987).

Comparison With Similar Crimes and Multiple Charges

As discussed above, forcible rape involves charges of forcible non-consensual vaginal insertion. However, other provisions of the criminal code punish other types of forcible non-consensual sexual acts. Engaging in other sex acts, such as cunnilingus, fellatio, analingus, or anal penetration by force and without consent are charged as first and second-degree forcible sexual offenses. The elements that must be proven by the prosecution are similar to those required to prove forcible rape. Thus, for example, to be convicted of a first-degree forcible sexual offense, the prosecution must prove that:

  • The accused engaged in a sexual act—like fellatio or anal penetration
  • By force,
  • Against the will of the other person, AND
  • The use of or threat of use of a weapon or the infliction of serious personal injury upon the victim or aided or abetted by one or more other persons

Often, a given circumstance will involve several sexual acts beyond non-consensual vaginal insertion. When that occurs, the accused will likely be charged with all possible criminal offenses.

Contact Our North Carolina Forcible Rape Defense Attorneys Today

If you are facing forcible rape charges here in North Carolina, contact Marcilliat & Mills PLLC immediately. Your criminal defense must begin as soon as possible. A conviction can ruin your life, place you on the sex offender registry, and impact your ability to find a job, go to school, rent an apartment, and more. Marcilliat & Mills PLLC knows North Carolina criminal law and has the experience to prepare the strongest possible defense strategy for your case. You must act quickly so that evidence gathering can begin. We will fight for you to help you beat the charges you are facing.

Do not hesitate to get in touch with us to learn more about how we can assist your criminal defense. Contact the Marcilliat & Mills PLLC today for more information.