Criminal Practice – Juvenile – Sexual Offense – ‘Force’ – Threat to Expose Secrets – Insufficient – Leader vs. Followers

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In re T.W. (Lawyers Weekly No. 12-07-0587, 14 pp.) (Martha A. Geer, J.) Appealed from Mecklenburg County District Court. (Elizabeth T. Trosch, J.) N.C. App. Full-text opinion.

Holding: Neither the juvenile’s threats to expose his victims’ secrets nor his social position as a leader was sufficient to show that the juvenile used constructive force to coerce the victims into performing sexual acts.

As to the three counts of second-degree sexual offense, we reverse and remand for entry of a new dispositional order.

The state has cited no authority holding that threats of exposure as opposed to threats of physical harm are sufficient to prove constructive force, and we have found none. In State v. Raines, 72 N.C. App. 300, 324 S.E.2d 279 (1985), this court addressed constructive force in the absence of a threat of physical harm and, at least implicitly, held that for constructive force to exist, the threats must be threats of physical harm.

We hold that the juvenile’s threats to his victims were not sufficient to constitute constructive force because they did not place the boys in fear of physical harm.

The state argues alternatively that we should extend the reasoning in State v. Etheridge, 319 N.C. 34, 45, 352 S.E.2d 673, 680 (1987), and hold that the nature of the relationship between the juvenile and the other boys — with his dominance over them — is sufficient to satisfy the constructive force requirements.

The relationship of a leader to a follower among children in school simply does not involve the same wielding of authority, disparity of power, and degree of fear that occurs between an abusive parent and a child. We hold Etheridge does not apply.