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Petitions to Terminate Sex Offender Registration

May 14th, 2009
By Jamie Markham

Under G.S. 14-208.12A, registered sex offenders who are not required to register for life can petition the superior court to terminate the registration requirement after 10 years. (The requirement to petition for deregistration came into being in 2006; before then, 10-year registrations terminated automatically after the requisite time had passed.) North Carolina’s sex offender registry has been around since 1996, so it’s not surprising-a little over a decade later-that these petitions are starting to come before the court more frequently. Unfortunately, the statute setting out the conditions under which the court may grant relief raises a number of difficult questions. One of the most difficult questions involves G.S. 14-208.12A(a1)(2), which prohibits a court from removing someone from the registry unless “[t]he requested relief complies with the provisions of the federal Jacob Wetterling Act, as amended, and any other federal standards applicable to the termination of a registration requirement or required to be met as a condition for the receipt of federal funds by the State . . . .”

What does that mean?

For over a decade, our state law on sex offender registration has flowed from federal mandates-states must enact laws that meet federal standards or lose certain grant funds. The Jacob Wetterling Act (1994) was the initial federal legislation that established minimum standards for states to register sex offenders. It has since been amended by Megan’s Law (1996), the Pam Lychner Act (1996), the Jacob Wetterling Improvements Act (1997), and, most recently, by the Adam Walsh Act (2006). Title I of the Adam Walsh Act, called the Sex Offender Registration and Notification Act, or SORNA, enacted a new and more stringent set of standards for sex offender registration. The act requires states to substantially implement these new standards by July 27, 2009, with up to two one-year extensions, or lose 10% of Byrne Justice Assistance Grant funds.

So what is G.S. 14-208.12A(a1)(2) really saying? I read it to mean that a court cannot allow someone off the registry if doing so would be contrary to the federal standards set out in SORNA-regardless of whether the General Assembly adopts them or not. There is an argument that this sort of blanket adoption by a state statute of prospective federal legislation, or of federal administrative rules yet to be adopted, is an unconstitutional delegation of state legislative power. See, e.g., Hutchins v. Mayo, 197 So. 495 (Fla. 1940) (holding that a state statute providing that fruit should be graded according to standards “as now fixed by the [USDA], or as standards may hereinafter be modified or changed,” unlawfully delegated state legislative power to a federal agency). But assuming they apply now, how do these federal mandates affect petitions to terminate registration?

Among other requirements, SORNA establishes a three-tier schedule of offense classification, with new minimum registration periods for each tier. For tier 1 offenses, the required registration period is 15 years (reducible to 10 years in some cases, described below); for tier 2 offenses, the period is 25 years; and for tier 3 offenses, the period is life. Because North Carolina will eventually need to adopt these new minimum periods to continue to receive federal funds, a court arguably ought, under G.S. 14-208.12A(a1)(2), to refuse to terminate registration for offenders who have not been registered for the amount of time that would be required under a SORNA-compliant regime.

The registration period for tier I offenses can be reduced from 15 to 10 years if the offender has a “clean record” during his or her period of registration, as that term is defined in 42 U.S.C. 16915(b)(1) and U.S. Department of Justice regulations, available here. Under this interpretation of G.S. 14-208.12A(a1)(2), only tier I offenses committed by offenders who satisfy the clean record rules are eligible to petition after 10 years as envisioned by G.S. 14-208.12A.

Which offenses would be tier I offenses? I can’t say for sure, as there is not a perfect overlap between our laws and the language and definitions used in federal law. My best guess is as follows:

  • Sexual Battery (14-27.5A)
  • Subjecting a Person to Sexual Servitude (14-43.13)
  • Incest between Near Relatives (14-178) (if the victim was not a minor)
  • Felony Indecent Exposure (14-190.9(a1)
  • Third Degree Sexual Exploitation of Minor (14-190.17A)
  • Peeping offenses (14-202)
  • Indecent Liberties with Children (14-202.1) (unless the crime involved “sexual contact,” defined as any sexual touching of or contact with the intimate parts of the body, either directly or through the clothing)

A person registering based on any other crime has to register for at least 25 years before being eligible to petition for termination under this interpretation of G.S. 14-208.12A(a1)(2).

All of that being said, on April 10, 2009, North Carolina applied to the U.S. Department of Justice for a one-year extension to comply with SORNA, which DOJ granted. Arguably, then, SORNA requirements are not yet “required to be met as a condition for the receipt of federal funds,” meaning consideration of the second prong of the test can, perhaps, be deferred until 2010 (or maybe 2011 if we apply for and are granted another one-year extension). Legislation proposed this session (H 1317) would bring North Carolina closer to SORNA compliance, but not all the way-the bill does not address retroactivity or juveniles.

Questions? Thoughts? Is the 15-year floor already being applied in some places? As always, I’d love to hear from you.

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80 Responses to “Petitions to Terminate Sex Offender Registration”

  1. Jay says:

    I am a registered Sex offender. I was in high school at the time of my offense and I feel I should’ve never been charged. An inspiring athlete, and had just enlisted in the Marine Corps, my future was set. Scholarships were rolling in, money was available, I was a senior in high school so of course the ladies were going to come. Long story short, the local law enforcement agencies had been trying to find a reason to lock me up because of my cocky attitude and flamboyant lifestyle. At the time I had just received a large sum of money from when my mother had died when I was a child. So naturally the assumed I was selling drugs. I was harassed on a daily basis. Me and my friend were subjected to regularly strip searches, so it was no surprise when they called me to the office that day. only my friend wasn’t there. What I found waiting was two detectives telling me my girlfriend was pregnant. my smart remark was tell her I said congratulations. they was asking me questions about our sex life which I felt had nothing to do with drugs. so I felt safe answering them. our school officer, ( who I later found out secretly despised me ) encouraged me to answer their questions. at the time I was 19. my girlfriend was 15. her mother knew about it. Pressured by her sister and the cops, her mother pressed charges. being charged caused me to be discharged from the Marines, my scholarships to be canceled, and thus begins my life of hell. I really didn’t understand the law like I do now otherwise I would’ve kept my mouth closed. In the state of Nc it doesn’t matter if they lie about their age or not, if you do it, youre guilty!! I knew her age but I didn’t care I was inlove. I was charged in 1999. I wasn’t convicted until 2001. it is 2014 and after four years in prison, one ruined marriage, and numerous of other failures in my life due to this charge, I still cant find a job. I have never worked a legal job due to this charge. I was wondering could anybody help me find a job.

  2. John says:

    What about situations under a first offender/pre-trial intervention in which the offender had adjudication withheld and has successfully completed the terms of supervision?

  3. Tracy says:

    I just got denied for a charge relating to a 2nd degree offence back in 93. After completing all of the requested and man dated guide lines. I was still denied removal. All because they say O fall under the Walsh Act. My crime had nothing to do with a child and I was convicted for acting in concert. But here is the kicker. I possess a Public Trust Security Clearance with the federal government Agency that i work for and cleared for a Level Non- Secret clearance also. Did i miss something. If i did, or if there is some process to have this reviewed more. Please provided me with the information. I hold more clearance then a jailer. And the federal government has stated by clearing me that I have the public trust and DOD trust. By I’m told I have to register for life.

  4. Scott says:

    I have a question. I have finished my time on the sex offender registry in Arkansas and petitioned the court and was granted the relief of obligation to register, which removes me from the state sex offender registry. Therefore, my question is, because the even though the state registrys have to comply with the federal mandates and guidelines. Why are so many states not complying with those set guidelines? And second since I do not have to register ever again in arkansas, will other states recognize the district courts decision to relieve me from registration or if i move to another state do i have to start my registration all over from day one and start registering in that state? Because I would figure that under the federal interstate compact, all states would have to recognize the final decisions of the courts nationwide.

  5. rob says:

    Im so sorry. Now u no how true law enforcement is.

  6. LR Morgan says:

    I don’t wish to claim pity or anything like that I want to look at the SOR from a different perspective. I am on the registry for a plea deal I took back in 2004 as a high school teacher accused of teacher misconduct with a 16 yr old. Even though I fought the case for over a year, I took the deal, did a 6 month prison sentence, intensive and unsupervised probation ALL without incident. What’s more, I went back to college, got a Masters degree, started a little consulting business and tried to fix my life. Now that I found another passion in Funeral Directing I thought maybe God was giving me a second chance. But to my dismay, the great state of NC says it will never allow someone with a sex crime conviction to become a licensed funeral director! So my question is how exactly are those registered supposed to be redeemed and rehabilitated. According to our own state reports, Sex offense crimes have the LOWEST rate of recidivism! So, if murderers, drug dealers, and any one else can be redeemed, why can’t those convicted of sex crimes?

    • Alice says:

      That is the question of this century. Why not indeed? Maybe because the general public are misinformed, or they do not think for themselves, instead ascribing to whatever public officials tell them is needed and true (all SO are the same). Maybe, such as was my case, people just don’t know or understand the injustice brought about by these laws, not just to offenders but to innocent family members, including chidlren, of sex offenders. I had no idea because I never had a reason to check into these laws until recently. Drug offenders harm many times more children than sex offenders…where is the registry for drug dealers. Doesn’t this make the laws discriminatory, even though they are “for public safety?”
      Our American values and ideals have become so skewed. Once a person does the time for his/her crime they should be given a second chance to live a productive life. The registry acts contrary to this, even with the possibility of reduction. Do people not undersand that for most people who are considered level 2, even with a 25 yr registration period …that is for life given their age at the time of release. These laws are shameful and have been enacted for the sole purpose of politicol gain. This discrimination is no different than that suffered by blacks during the civil rights era. Most law enforcement agencies will tell you these laws do nothing to protect the public but cost taxpayers a WHOLE BUNCH OF MONEY.

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