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Article Excerpt
I. INTRODUCTION
In North Carolina, prior to the 2003 Supreme Court decision in Lawrence v. Texas, (1) virtually any form of physical intimacy other than vaginal sex between a man and a woman was punishable as the felony "crime against nature." (2) Indeed, a mere invitation to participate in such a felony was punishable on a theory of derivative criminality at North Carolina common law as "solicitation of the crime against nature." (3) After Lawrence, however, statutes that would criminalize a personal choice in forms of physical intimacy are constitutionally invalid. (4) It follows that if a given activity is no longer criminal, an offer to engage in that conduct is no longer punishable as solicitation. Or so it would seem.
Teresa Pope was charged with solicitation of the crime against nature for offering oral sex for money to two undercover police officers. (5) Solicitation is an inchoate offense--like attempt or conspiracy--that relies on the criminality of the underlying conduct. (6) Although oral sex by itself cannot be criminalized post-Lawrence, the North Carolina Court of Appeals held in State v. Pope that the charge of solicitation of the crime against nature survived Lawrence by virtue of an exception in that decision allowing criminalization of "prostitution." (7) But prostitution in North Carolina is governed by a separate statute that applies only to the commercialization of vaginal intercourse between a man and a woman. And the crime against nature is not a prostitution offense because it has no commercial element. (8) After Lawrence, criminality cannot turn merely on the type of physical intimacy chosen, but rather it must depend on some external, validly regulated element, such as a commercial exchange.
Pope is more than just a bungled state court opinion. It reveals deep uncertainty about the legality of solicitation of sexual conduct in North Carolina after Lawrence. Indeed, Pope is just one of an increasing number of cases where North Carolina courts have--without any guidance from the General Assembly--attempted to adapt the crime-against-nature statute to survive Lawrence by refashioning the elements of the offense on a case-by-case basis. (9)
North Carolinians deserve better than the uncertainty of ad hoc judicial criminal lawmaking. It is the responsibility of the General Assembly to legislate the criminal law and give due notice of what is--and is not--legal in the State of North Carolina after Lawrence. Properly reformed regulations of sexual activity would--without impermissibly discriminating between forms of physical intimacy---clearly identify those additional elements, such as a commercial exchange, that would render any physical intimacy a crime.
II. NORTH CAROLINA SOLICITATION LAWS BEFORE LAWRENCE
North Carolina regulates solicitation of sexual activity under two separate regimes: vaginal intercourse between a man and a woman is subject to one set of regulations, and all other forms of sexual intimacy--whether heterosexual or homosexual--are regulated as "crimes against nature." Commercialization of sex--that is, offering or receiving any form of sexual conduct in exchange for money--is ostensibly prohibited under the corresponding regime. Vaginal, heterosexual sex for money is prohibited as prostitution, while all other forms of physical intimacy-for-hire are prohibited as solicitation of the crime against nature. The following figure illustrates the difference.
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Prostitution is defined by North Carolina's criminal code as "the offering or receiving of the body for sexual intercourse for hire." (10) In State v. Richardson, the Supreme Court of North Carolina construed this statute to apply only to vaginal, heterosexual sex. (11) Consistent with the canon that criminal laws are to be interpreted narrowly, the court explained that "[i]f the legislature wishes to include within [the prostitution statute] other sexual acts, such as cunnilingus, fellatio, masturbation, buggery or sodomy, it should do so with specificity." (12) Under Richardson, all forms of physical intimacy, even when offered or received for money, fall squarely outside North Carolina's definition of prostitution.
By contrast, the crime-against-nature statute purports to criminalize certain forms of physical intimacy directly, without regard to whether they are performed for money. (13) The statute provides that "[i]f any person shall commit the crime against nature ... he shall be punished as a Class I felon." (14) This modern version of the ancient sodomy statute (15) was interpreted expansively by the Supreme Court of North Carolina to include all "sexual intercourse contrary to the order of nature ... [including] acts between humans per anum and per os." (16) Indeed, the court emphasized that "our statute is broad enough to include ... other forms of the offense than sodomy and buggery." (17)
As with solicitation of other felonies, solicitation to commit the crime against nature is punishable as a separate offense at North Carolina common law. (18) The inchoate crime of solicitation is defined generally as "urging, advising, commanding, or otherwise inciting another to commit a crime." (19) In State v. Tyner, a North Carolina Court of Appeals acknowledged the offense of solicitation of the crime against nature. (20)
Solicitation of the crime against nature, however, is not a prostitution offense because it lacks the requisite commercial element. The Tyner court was clear that liability for solicitation derives from the criminality of the underlying conduct, holding that "[t]he gravamen of the offense of solicitation to commit a felony lies in counseling, enticing, or inducing another to commit a crime." (21) While a commercial exchange is the gravamen of prostitution, defendants have been convicted of solicitation of the crime against nature even where the offer of intimacy was non-commercial. (22)
Indeed, that the crime-against-nature statute seeks to punish an individual's choice of forms of physical intimacy is demonstrated by the fact that the conduct itself actually constitutes a more serious offense than a mere offer to engage in it. After Lawrence, such conduct-based regulation is unconstitutional. (23) Therefore, criminal liability cannot turn on the form of the conduct. Instead,...
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