North Carolina Law Review

University of North Carolina School of Law

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Consent, Resistance, and the Physically Helpless Victim: Modernizing North Carolina's Second-Degree Rape Statute in Light of State v. Huss

March 27, 2014

92 N.C. L. Rev. Addendum 162 (2014)


The recent case of State v. Huss demonstrates the problems associated with discriminatory and archaic provisions in state rape statutes. In the case, the North Carolina Court of Appeals was tasked with interpreting a specific provision of the state's second-degree rape statute. Normally, the State would have to prove the elements of force and a lack of consent in order to sustain a second-degree rape conviction. However, under the "physically helpless" theory, the State must show the defendant committed a sexual offense against a victim who is "physically helpless" because she is "unable to resist an act of vaginal intercourse or a sexual act or communicate unwillingness to submit to the act of vaginal intercourse or a sexual act." In this way, the "physically helpless" provision is analogous to a statutory rape statute because the prosecution's burden is only to show the victim is a member of a particular class. 


In Huss, the court grappled with the question of who qualifies as a physically helpless victim. The Court of Appeals reversed Huss's conviction for second-degree rape on the grounds that Huss's victim was not "physically helpless." However, the court also observed that appropriate and sufficient evidence existed to support a conviction if the State had pursued its case under the traditional theory of rape, which requires the prosecution to prove the elements of force and lack of consent. Proper application of the physically helpless provision post-Huss was further muddled by the Supreme Court of North Carolina's tied vote in the case on appeal, resulting in the Court of Appeals' Huss decision having no precedential value. 


In analyzing the North Carolina Court of Appeals' decision in Huss, this Recent Development seeks to highlight the flawed approach of the physically helpless provision under the state's second-degree rape statute. This "physically helpless" provision in the statute is rooted in the archaic notion that a victim has a duty to actively resist her aggressor. This Recent Development argues that the physically helpless provision and corresponding case law are harmfully outdated in relying on notions of resistance and ignoring matters of consent.



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