To lawfully have sex, both partners must give consent and be old enough to give consent lawfully. The age of consent for sex is 16 years old in North Carolina. If at least one of the partners is under 16, the older partner may be guilty of perpetrating a statutory sexual offense or rape.

What Is Consent?

The legal definition of consent varies from state to state for sexual activities. Consent is needed to show that the parties have willingly agreed to engage in sexual activities. There may be criminal consequences when consent is not present, including jail time.

When Is Consent Required for Sexual Activity?

Sexual assault can involve an act of force or violence and can be classified as a crime rising to the level of a felony. In a criminal case involving a charge of sexual assault, the defendant may be found guilty if there is no proof that the accuser has given consent to the sexual contact. Consent may be missing in cases where the accuser is intoxicated, mentally ill, or a minor.

Can a Minor Consent to Sexual Activity?

In most states, a minor cannot consent to specific sexual activities. This scenario usually involves a person over the age of consent who engages in sexual activities with someone depicted as a minor by law.

It is considered statutory rape when this happens, and the minor is legally incapable of giving consent. It is not a sufficient defense that the accused was mistaken about the minor’s age.

What Does It Mean Legally to Consent to Sexual Activity?

Again, each state has its definition of consent, and this definition is crucial to determining whether there has been a crime. The key consideration here is that consent should be communicated plainly and explicitly.

For instance, the following are traditionally not acceptable evidence of consent:

  • Silence; or
  • Sexual activity is based on pre-existing relationships (i.e., dating and marriage).

While each state differs in how it defines consent, there are three prevalent inquiries that a court may engage in to resolve whether there is evidence of consent:

  • Affirmative Consent: Did the parties indicate their agreement to engage in sexual acts by explicit or overt actions or words?
  • Voluntary Consent: Did the perpetrator use force, brutality, or threat of violence to induce the victim to engage in sexual activities against their will?
  • Consent Ability: Was there a legal or another incapacitating obstacle to consent?
  • Legal Consent: Was the victim a minor?
  • Mental or Other Incapacity: Was there some developmental disability? Was the victim passed out?
  • Intoxication or Unconsciousness: Was the victim intoxicated? Was the victim asleep at the time of the assault? Was the accuser given drugs that affected their capacity to consent knowingly?
  • Relationship Between Victim and Perpetrator: Was the perpetrator in a position of authority —a teacher or police officer, for instance?

If there is any doubt or equivocation, the best course is to refrain from sexual contact.

What Is Statutory Rape in North Carolina?

Statutory rape in North Carolina is the crime of engaging in vaginal intercourse with a minor under 16. There are three separate crimes for statutory rape in North Carolina, with the primary distinctions between the crimes being the ages of both the perpetrator and the victim.

What Is Rape?

The modern definition of rape can vary widely in each state. Traditionally, it was defined as sexual intercourse between a man and a woman was done forcibly against the woman’s will. However, many states do not emphasize the “forcible” requirement now, so situations like a man having sex with a drugged woman, or a man using pretenses to have sex with a woman, could be considered rape.

In many states, rape laws are gender-neutral, so they apply to acts between men and women and between people of the same sex.

Does Statutory Rape Apply to Young Boys?

Most statutes refer to victims and perpetrators as “persons” rather than cite a specific gender or sex. Nevertheless, enforcement of statutory rape laws against adult women who have sex with boys below the age of consent is not always documented and not always prosecuted. State prosecutors don’t always bring charges against women who commit statutory rape against minor boys because there is a social stereotype that the teenage or minor boy was “lucky” or that the statutory rape was okay because the boy enjoyed the sex.

If you think a young boy was the victim of statutory rape, you should report it to the police. The state might not prosecute it, but that’s for prosecutors to decide, not average citizens.

What About Homosexual Statutory Rape?

Statutory rape between homosexuals is broken down into two groups:

  • Man/Boy: The man will almost undoubtedly be prosecuted.
  • Woman/Girl: Mostly untested. The first case to gain publicity was controversial. Some argued that the 18-year-old woman was taking advantage of the 14-year-old girl. Others claimed that it was a case of homosexual discrimination.

Are There Any Defenses to Statutory Rape?

There are a few defenses to statutory rape:

  • Mistake of age: The defendant can claim that they believed the victim was over the age of consent. However, this defense varies from state to state. Some states hold that statutory rape is a strict liability crime; it doesn’t matter what the defendant thinks. Other states will limit the mistake of age to particular circumstances. Other states will permit the defense if the defendant can demonstrate they had a reasonable basis for their mistaken belief about age.
  • Rape by fraud: The defendant claims that the minor knowingly misrepresented their age to have sex with the defendant. In other words, the defendant is the victim of the minor’s crooked wish to have sex with someone older than the law permits. This defense is very new, so it won’t be easy to guess whether this defense has any legitimacy.
  • “Romeo and Juliet”: Many states have exceptions to statutory rape based on the age difference between the partners.
  • Mental Incapacity: The defendant argues that they are insane.

How Is a Statutory Sexual Offense Different From Statutory Rape?

Statutory rape only deals only with vaginal intercourse with a minor. A statutory sexual offense is a crime of engaging in a sexual act other than vaginal intercourse with a child under 16 years old. That sexual act can be:

  • Fellatio
  • Analingus
  • Sodomy
  • Sexual organ penetration by an object for a non-medical purpose
  • Cunnilingus

Just as there are three different statutory rape crimes, there are three different sexual offense crimes. They are statutory sexual offense with a child by an adult, first-degree statutory sexual offense, and statutory sexual offense with a person who is 15 years of age or younger.

What Is a First-Degree Statutory Sexual Offense?

A first-degree statutory sexual offense is the crime of engaging in a sexual act with a minor under the age of 13. The perpetrator must be at least 12 years old and at least four years older than the minor to be charged with this crime.

What Is the Punishment for a First-Degree Statutory Sexual Offense in North Carolina?

A first-degree statutory sexual offense is a Class B1 felony. The punishment for a first conviction for a Class B1 felony is 192 to 240 months in prison.

Do I Need a Criminal Lawyer?

Legal representation is essential if you wish to defend yourself against this crime properly. You need a North Carolina criminal lawyer to understand your legal rights and available defenses. They can also represent you in court and guide you through the legal process.