In Phillips, the defendant pled guilty to taking indecent liberties with a child under G.S. 14-202.1 and felonious child abuse by the commission of a sexual act under G.S. 14-318.4(a2) for offenses against his girlfriend’s 10-year-old daughter. He had been charged with more serious crimes, including first-degree rape and first-degree sexual offense, but those charges were dismissed pursuant to his plea agreement. Nevertheless, the uncontested factual basis for the plea indicated that the defendant’s actual offense against the girl involved vaginal intercourse.
Looking at that factual basis, the trial court found at Mr. Phillips’s SBM determination hearing that he had committed an “aggravated offense” and ordered him to SBM for life. An aggravated offense, you’ll recall, is “any criminal offense that includes either of the following: (i) engaging in a sexual act involving vaginal, anal, or oral penetration with a victim of any age through the use of force or the threat of serious violence; or (ii) engaging in a sexual act involving vaginal, anal, or oral penetration with a victim who is less than 12 years old.” G.S. 14-208.6(1a).
The court of appeals reversed. Citing to State v. Davison (discussed here), the court said that a trial court may only consider the elements of the conviction offense—“not the underlying factual scenario giving rise to the conviction”—when deciding whether a crime is an aggravated offense. Having already held in Davison that indecent liberties is not, by its elements, an aggravated offense, the court moved on to consider whether felonious child abuse by the commission of a sexual act might be covered. For several reasons, the court said, it is not.
The elements of felonious child abuse under G.S. 14-318.4(a2) are: (1) a defendant, who is a parent or legal guardian of (2) a child less than 16, (3) commits or allows the commission of any sexual act upon that child. The court of appeals highlighted three reasons why this crime is not aggravated based on its elements alone. First, it requires a “sexual act,” and under North Carolina law, not every sexual act involves vaginal, anal, or oral penetration. See John Rubin, 2007 Legislation Affecting Criminal Law and Procedure, at 10; Jessica Smith, North Carolina Crimes: A Guidebook to the Elements of Crime 168 (6th ed. 2007) (noting that fellatio, cunnilingus, and analingus do not always involve penetration). Thus, a court necessarily needs to look at information beyond the bare elements of the crime to know whether the offense at hand was aggravated—a look that’s prohibited under Davison. Second, the child abuse crime can be committed by either “committing” or by “allowing” a sexual act upon a child. So again, a judge wouldn’t know from the elements of the crime alone whether the defendant himself actually “engaged in” a penetrative sex act, as required by the aggravated offense definition. Third, because felonious child abuse does not include force or the threat of serious violence as an element, the only way the crime could be aggravated is if it involves acts against a victim less than 12 years old. Because the elements require only that the victim be a child under 16, the court cannot know by looking at the elements alone whether the victim meets the “less than 12” aggravated offense threshold. [As an aside, the court’s view on this last point might pull the state outside of federal standards promulgated under the Adam Walsh Act, which say that states “are not required by [federal law] to look beyond the elements of the offense of conviction in determining registration requirements, except with respect to victim age.” U.S. Dep’t of Justice, National Guidelines for Sex Offender Registration and Notification 64 (emphasis added). That may be something the General Assembly will need to consider in the next year or two as the state decides whether to comply with federal standards, which it must do to continue receiving certain federal funds (discussed here).]
The legal rule applied in Phillips isn’t new; we already knew from Davison that aggravated offense determinations are an elements-based exercise. What’s noteworthy, I think, is that it’s starting to look like the aggravated offense prong of the SBM statute might be a dead letter—or at least nearly so.
The court had suggested in Davison that there might be only four crimes (first- and second-degree rape and first- and second-degree sexual offense) that could ever be aggravated under an elements-based approach, but it expressly backed away from that dicta in footnote 2 in Phillips. We now know, based on the court’s analysis of the “sexual act” element in Phillips, that sexual offenses can’t be aggravated, because the definition of sexual act in G.S. 14-27.1(4) includes things that don’t necessarily involve penetration. First-degree statutory rape also can’t be aggravated because the court can’t know for sure, looking at the elements of the crime alone, that the victim wasn’t 12, and thus outside the aggravated offense definition. That leaves the forcible rape crimes as the only permissible aggravated offenses—and I can even imagine arguments against those. See State v. Ridgeway, 185 N.C. App. 423 (2007) (suggesting that “forcible” and “statutory” are merely alternative theories of proving the same offense, first-degree rape).
I don’t expect this to be my only post on SBM this year. There are multiple SBM cases pending before the Supreme Court of North Carolina, some of which have already been argued, and some of which (Bowditch, Plemmons, and Waters) are slated for argument in the coming weeks. I’m sure I’ll write about them when they’re decided. Feel free to call or email with questions in the meantime.