Sex Offender Q and A

by School of Government faculty member Jamie Markham

Last month I taught a session for the superior court judges on sex offender registration and monitoring. The handout I used included a set of exercises that we didn’t have time to get through in the session, so I promised the judges I would distribute answers. But why should they get to have all the fun? The exercises follow, with answers after the jump. My sex offender registration and monitoring flow chart is available here if you need it. Page Two, Side Two of form AOC-CR-603 might also come in handy. Finally, for those interested in additional reading, the full handout I used in the session is available here and a related handout from another session is available here.

1.  Which of the following offenders are subject to sex offender registration?

a.  A defendant is convicted of sexual battery on January 15, 2008, based on acts that occurred on October 5, 2005.

b.  A defendant is convicted of crime against nature on November 12, 2008, based on acts that occurred on July 1, 2008.

c.  A defendant released from prison on July 1, 1996 after serving a 15-month sentence for an April 1995 conviction for taking indecent liberties with children.

2.  A defendant pleads guilty to assault on a female based on acts involving his 12-year-old step-daughter. He pushed her after she refused his sexual advances. He is sentenced to 36 months of probation.

a.  Is this a reportable conviction?

b.  Is the defendant subject to any special conditions of probation?

3.  A person subject to the 30-year sex offender registration requirement was arrested and charged with failure to register when he didn’t respond to a semiannual verification form as required in G.S. 14-208.11. Can this offender successfully petition to terminate his registration requirement after 10 years under G.S. 14-208.12A?

4.  In 2009, a defendant is convicted of first-degree rape based on an offense that occurred July 1, 2000. The victim was a 25-year-old woman.

a.  Is this a reportable conviction? If so, how long must this offender register?

b.  Is the offender subject to satellite-based monitoring? If so, for how long?

c.  Suppose the victim was a 16-year-old girl. Does this change your answer to (b)?

5.  A 19-year-old defendant pleads guilty to taking indecent liberties with a 13-year-old girl. The offense, which involved consensual oral sex, took place January 12, 2009.

a.  Is the offender subject to satellite-based monitoring? If so, for how long?

b.  Suppose the victim was 11. Does this change your answer to (a)?

6.  A defendant was convicted for taking indecent liberties in 1989. He was later convicted again for taking indecent liberties in 2005, given an active sentence, and released from prison in 2008. Is he subject to lifetime registration and lifetime satellite based monitoring as a recidivist?

7.  In 2009, a defendant is convicted of felony indecent exposure under G.S. 14-190.9(a1). The victim was a 10-year-old girl. At sentencing you determine that the offender is not a recidivist, aggravated offender, or sexually violent predator. You do, however, find that the defendant committed an act involving the sexual abuse of a minor, so you order DOC to complete a risk assessment.

a.  Do you wait for DOC to complete the risk assessment before sentencing the defendant? (G.S. 14-208.40A(d) says DOC shall have 30 to 60 days to complete the assessment and report the results.)

b.  Suppose the assessment comes back MODERATE. What are your options?

c.  Suppose the assessment comes back HIGH. What are your options?

Again, the answers are after the jump.

1.           a.  No. The legislation that made sexual battery a reportable crime applies only to offenses committed on or after December 1, 2005. (S.L. 2005-130).

b.  No. Crime against nature is never a reportable conviction.

c.  Yes. Though the crime took place in 1995, indecent liberties with children is reportable for those convicted or released from prison on or after January 1, 1996.

2.            a.  No. Assault on a female is never reportable.

b.  Yes, if the court finds that the crime involved the “physical, mental, or sexual abuse of minor” (an undefined term). G.S. 15A-1343(b2). I think this situation could be construed as physical abuse or perhaps sexual abuse – items 8 and 9 on Page Two, Side Two of form AOC-CR-603 guide the court through the mandatory probation conditions that apply depending on what type of abuse occurred.

3.  Yes, in the court’s discretion. G.S. 14-208.12A says a person may petition to terminate registration if he or she “has not been arrested for any crime that would require registration under this article since completing the sentence.” Some have argued that failure to register is an “offense requiring registration”-i.e., if you don’t register as required, you’ve committed that offense. It seems clear to me, however, that “offense requiring registration” in this context means “reportable conviction.”  Because failure to register is not itself a reportable conviction, I don’t think an arrest for failure to register is a per se bar to a petition to terminate registration. Of course, the court is free to consider a registrant’s failure to register under the third prong of G.S. 14-208.12A(a1): that the petitioner is not a current or potential threat to public safety.

4.            a.  Yes. 30 years. Offenses committed before October 1, 2001 cannot be “aggravated offenses” requiring lifetime registration. S.L. 2001-373.

b.  No. The offender is not subject to lifetime registration because this is not an aggravated offense (it took place before October 1, 2001). The offender is not subject to monitoring for a period of time specified by the court because the offense did not involve a minor.

c.  Maybe. If the victim was 16, this act could be considered sexual abuse of a minor, and could thus subject the defendant to SBM for a period specified by the court – if the court also determined that the defendant required the “highest possible level of supervision and monitoring.” That determination could stem from a Static-99 (DOC’s risk assessment tool) rating the person as high risk, or from other facts found by the court. State v. Kilby, __ N.C. App. __ (2009) (July 21, 2009).

5.            a. This question is meant to get at the issue of whether a court may, when determining whether a crime was an aggravated offense, consider only the elements of the crime of conviction, or whether it may also look behind the conviction to the facts of what actually occurred. In this first variation of the hypothetical, however, it doesn’t matter whether one looks at the facts – even though the real offense involved oral penetration, it was not by force, and was not with a victim under 12 years old. Thus, it could never be an aggravated offense. That leaves the possibility that this could be considered sexual abuse of a minor, which, in conjunction with a determination that the defendant requires the highest possible level of supervision and monitoring, would place the offender under SBM for a period determined by the court.

b.  If the victim was 11, this could be an aggravated offense (“sexual act” involving “oral penetration” with a “victim who is less than 12 years old,” G.S. 14-208.6(1a)), subjecting the defendant to lifetime SBM, if you look at the facts of what actually happened. The appellate courts have answered many questions about SBM recently, but they haven’t yet told us what “evidence” a court may consider when determining whether a particular offense is an aggravated offense, and under what rules and to what standard of proof it ought to consider that evidence. (To be fair, the General Assembly hasn’t weighed in either.)

6.  Yes. These are essentially the facts of State v. Wooten, discussed here. The court concluded that the defendant’s prior offense, despite having occurred years before the sex offender registry came into existence, was still an offense “described in G.S. 14-208.6(4).” Provided the offender has at least one offense that occurred after October 1, 2001 (S.L. 2001-373) and otherwise falls within the effective date provisions for SBM (essentially, convicted or released from prison after August 16, 2006, as set out in S.L. 2006-247), he or she is subject to SBM for life.

7. Parts (b) and (c) of this question get at issues that were answered, at least in part, by the court of appeals on July 21 in State v. Kilby. I’ll write in detail about that case soon. As for part (a), both judges and officials from DOC’s Division of Community Corrections (DCC) have told me how the procedure set out in G.S. 14-208.40A(d) puts them in a bit of a bind. If the court finds that the offender committed an offense that involved the physical, mental, or sexual abuse of a minor, it is supposed to order DOC to do a risk assessment, the results of which will guide the court’s determination of whether the offender requires the highest possible level of supervision and monitoring. The statute says DOC shall have 30 to 60 days to complete the assessment, but many times the parties (including DCC) agree that they don’t want to wait that long. Some judges are continuing sentencing for 30 to 60 days to give DCC time to complete the assessment. Some judges are proceeding with sentencing, assuming the offender will be brought back into court to complete the SBM determination process when the Static-99 is complete. And other judges are putting off the SBM determination altogether, with the idea that the determination can be made later at a bring-back hearing. Form AOC-CR-615 doesn’t help (through no fault of AOC-the form simply tracks the statute), as it assumes the court will already have the risk assessment results.

According to DCC, its strong preference is that the judge continue sentencing for a short period of time (hours, not days) to give a probation officer time to complete the risk assessment before the court begins the SBM determination hearing.  It is much easier, they say, for an officer to complete the Static-99 at that point than it is to get the assessment done while the offender is in prison. Several judges told me this approach works well. Has it worked (or not worked) for any of you?