Section 14-177 of the North Carolina General Statues, derived from an English statute passed during the reign of Henry VIII, provides, "If any person shall commit the crime against nature, with mankind or beast, he shall be punished as a Class I felon."
"Crime against nature" has been defined by North Carolina courts as "sexual intercourse contrary to the order of nature," including all "acts of bestial character whereby degraded and perverted sexual desires are sought to be gratified." While this definition is incredibly broad, enough so that it could conceivably include masturbation or sexual positions once thought "unnatural," the CAN law is now only used in cases involving oral sex (fellatio and cunnilingus) and anal intercourse.
Prior to Lawrence, the CAN law was used to prosecute two male sexual partners as well as male and female partners. Apparently no CAN case has ever been brought against two women in North Carolina, although a woman in Tennessee served two years in prison for consensual CAN with another woman before that state’s sodomy law was declared unconstitutional. Lawrence made clear that law enforcement officers may no longer arrest hetero- or homosexual people for CAN activity in private, but officers are still making CAN arrests for activity occurring in public as well as for solicitation to perform acts of CAN in public or in an unspecified place. Theoretically, arrest and prosecution under CAN laws are also possible at this point in a few additional situations: where one of the participants is a minor or an incapacitated or disabled adult incapable of consent, where prostitution is involved (that is, money or some other material thing of value is exchanged for the CAN act), or where one of the participants is coerced.
Law enforcement officers and prosecutors argue that they continue to enforce and press charges for CAN activity because the laws against prostitution, sex with minors, and the like are not worded broadly enough to include oral and anal sex. While this rationale may seem reasonable at first, the problem is that enforcement of the CAN law penalizes homosexual men more severely than heterosexuals for sexual activity in secluded areas. For example, a heterosexual couple "parking" at night in a deserted area or making love in the woods will most likely be ignored by law enforcement officers. At most, they will be charged with indecent exposure, a misdemeanor. Two men in an identical situation, however, will usually be charged with CAN—a felony. (However, most nonviolent CAN cases today are subject to structured sentencing law, so only a defendant with an unusually bad record would receive an active prison term.)
In order to convict someone of CAN, prosecutors must prove beyond a reasonable doubt that an act of penetration occurred (that is, the state must prove that a penis was inserted into someone’s mouth or anus, or that a tongue was inserted into someone’s vagina or anus). Because the few acts of consensual CAN prosecuted in North Carolina have generally occurred in dark areas or behind a closed door (in an adult bookstore, for example), such cases are often difficult for prosecutors to prove, if the defendant insists on a trial.
However, most CAN (or CAN solicitation) cases never make it to trial: Almost all CAN defendants, even those who insist they are innocent and could never be convicted if the case were to be tried, plead guilty in the early stages of the criminal process for a number of reasons both psychological and historical. Unfortunately, a guilty plea generally results in the defendant’s having to participate in a deferred prosecution program, which carries requirements far more burdensome than the worst sentence he could have received in the unlikely event that a jury were to find him guilty.
As noted previously, the CAN law does not make it illegal to be homosexual, nor does it apply to the numerous forms of same-sex activity, such as mutual masturbation, to which the law does not extend.