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North Carolina Criminal Law 14-27.33 Sexual Battery

1. Definition and Elements of the Crime

Sexual Battery Sexual Battery, as defined by N.C.G.S. 14-27A (formerly codified as N.C.G.S. 14-27.5A) is an intentional act, requiring sexual contact with another or use of force against the victim’s will, for the purpose(s) of:

  1. Sexual Gratification
  2. Sexual Abuse
  3. Sexual Arousal

The State bears the Burden of Proof to present incriminating evidence against the accused, proving Beyond a Reasonable Doubt the following general essential elements of the offense:

  1. Defendant engaged in or had sexual contact with another person
  2. Such contact or “engagement” was against the will of the victim and involved the use of force on the person of the victim
  3. Defendant acted for the purpose(s) of sexual abuse, arousal, or sexual gratification

Criminal charges may also involve sexual contact with persons who have mental or physical disabilities or victims who are incapacitated, including but not limited to victims who are:

  1. Mentally Disabled
  2. Physically Helpless
  3. Mentally Incapacitated

The Defendant must be aware of, knew or reasonably should have known of the victim’s disability, helplessness, or incapacity.

Sexual contact may include such things as:

  1. Touching the victim’s buttocks, breast, groin, anus, penis, or sexual organ
  2. Touching the alleged victim with Defendant’s own sexual organ
  3. Placing or emitting ejaculate, feces, urine, semen on the victim

Sexual Battery is a type of sexual assault crime that is categorized as a misdemeanor offense, differing from other, more serious sexual assaults including “sex offense” (first and second degree), rape, indecent liberties, and sexual exploitation, all of which are felony charges in North Carolina.

Sexual Battery is classified as a Class A1 Misdemeanor in North Carolina and further subjects the defendant to enhanced punishments including an active period of incarceration in prison or jail (depending on the defendant’s prior record level), supervised probation, and a psychiatric evaluation and treatment.

Felony and misdemeanor sexual assault and battery charges may require registration as a sex offender or “sexual predator” if the final conviction is categorized as a “reportable offense” as defined within Article 27A of N.C.G.S. 14-208.6, Sex Offender and Public Protection Registration Programs.

Sexual Battery, as prohibited in N.C.G.S. 14-27A, is deemed a “sexually violent offense” and therefore a “reportable sexual offense” in North Carolina pursuant to N.C.G.S. 14-208.6(5).

In 2015, N.C.G.S. 14-27.5A “Sexual Battery” was recodified to N.C.G.S. 14-27.33 - Sexual Battery and applies to acts and offenses committed after December 1, 2015.

2. Examples
  1. Defendant is in a popular uptown Charlotte bar known as “Prohibition.” Patrons crowd around the bar, seeking to purchase alcoholic beverages.

    While waiting to order, Defendant inadvertently rubs against the “victim,” slightly brushing against the victim’s buttocks (rear end).

    Defendant should not be convicted of Misdemeanor Sexual Battery, as his act is not intentional and is in fact accidental, incidental contact.

    Rubbing against the alleged victim, by accidental or incidental contact in a crowded bar, is not sexual contact for the purposes of sexual gratification, sexual arousal, or other form of sexual abuse.

  2. Defendant is a college student and member of the social fraternity, Delta Epsilon Phi, at UNC Charlotte. The fraternity house is located off-campus, near the UNCC campus.

    Defendant and his brothers sponsor an annual year-end party, calling it “Too Drunk to Care.” T-Shirts are printed, in-advance of the event, and given to all attendees, including a local co-sponsoring sorority, known as Pi Xi Tau.

    The alleged victim is a sister at Pi Xi Tau.

    Prior to attending the “Too Drunk to Care” mixer, the alleged victim participates in a “warm up” with other sorority sisters at the Pi Xi Tau house.

    There they consume “bars” of Xanax and drink three fireball shots.

    Defendant and the alleged victim meet up the party, spending an hour drinking keg beer together before going to the Defendant’s room. The sorority sister is visibly impaired, but fully conversational.

    She tells the Defendant, pointing to her new T-Shirt, “I am too drunk to care. Let’s hook up.”

    Defendant and the victim take off their clothes and engage in sexual contact with one another, touching each other’s sexual organs including contact with breasts, penis, and buttocks.

    They do not have sexual relations or engage in oral sex, anal sex, or intercourse.

    The next morning the alleged victim calls UNCC police, complaining that the Defendant, “Took advantage of me. I remember everything we did, but he should have known I was too drunk to suggest hooking up. I never do stuff like that.”

    The Defendant should be found not guilty of Sexual Battery, as the sexual conduct between the Defendant and the alleged victim was voluntary. The sexual contact was for the purpose of sexual gratification.

    The Defendant did not use force or threaten to use force against the will of the alleged victim. Claims that she was “incapacitated,” likely are without merit or legal effect.

3. Related Legal Issues and Offenses4. Defenses to Misdemeanor Sexual Battery

Assault, and Assault and Battery are traditional Common Law offenses. Sexual Battery is a crime created by statute. Common law defenses may be available including:

  1. Consent
  2. Mistake
  3. Accident

Affirmative defenses such as duress, insanity, and involuntary intoxication or impairment, may, in certain circumstances, serve as valid defenses to Sexual Battery in North Carolina.

Voluntary, consensual sexual acts, sexual contact, and/or sexual conduct is ordinarily a defense. Certain exceptions may apply, especially in instances where the alleged victim cannot, as a matter of law, give consent.

That may include acts committed against a minor, a physically or mentally helpless or disabled victim, or victims otherwise rendered helpless due to both voluntary and involuntary impairment or intoxication.

5. Penalties

Sexual Battery in North Carolina is classified as a Class A1 Misdemeanor offense, carrying a maximum period of incarceration of up to 150 days.

Consistent with the NC Misdemeanor Sentencing Guidelines, and other A1 Misdemeanor charges in North Carolina, the sentencing court may impose any of three types of punishment including:

  1. Community Punishment (C)
  2. Intermediate Punishment (I)
  3. Active Punishment (A)

Community Punishment ordinarily involves a suspended sentence in lieu of an active period of incarceration in jail or the NC Department of Adult Corrections.

Community Punishments may therefore include, but are not limited to both Supervised and Un-Supervised Probation, Fines, Community Service, Supervision Fees, Costs of Court, and a substance abuse assessment and compliance with recommended treatment.

Intermediate Punishment is a middle-level, enhanced type of punishment pursuant to the NC Sentencing Guidelines for misdemeanor offenses.

Intermediate Punishments may include things like house arrest, electronic monitoring, continuous alcohol screening, and special terms of probation, including a “split term” of incarceration in custody, which ordinarily served in the local jail.

Such punishments are often in addition to other terms imposed as Community Punishments.

Active Punishment is authorized up to 150 days incarceration for Prior Record Level III offenders with five or more prior convictions or as may be otherwise calculated pursuant to the Sentencing Guidelines.

6. Criminal Defense for Dispensing of a Controlled Substance Cases

Sexual Battery Sex crimes or “sexual offenses” are serious legal matters in North Carolina.

If you are under investigation for or have been accused of illegal sexual conduct, it is imperative to speak with a Charlotte criminal lawyer without delay.

Our criminal defense lawyers recommend you exercise your Fifth Amendment Right to Remain Silent.

Politely, but firmly assert your right to speak with legal counsel. Request to speak with a defense attorney. Refuse to answer questions, cooperate with any investigation, or provide information.

While Sexual Battery in North Carolina is classified as a misdemeanor charge, it carries a tremendous social stigma.

Even allegations of illegal sex crimes / sex acts or an arrest can have long-term consequences to your reputation in the community.

In addition to substantial, potential punishments by the Court for a criminal conviction, Sexual Battery is deemed, by statute, a sexually violent offense.

If convicted, the criminal laws in North Carolina require registration as a sex offender.

Once legally deemed a “sex offender,” it doesn’t matter whether such is due to a felony or misdemeanor offense, there are substantial restrictions to where you may work and live.

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