With another legislative session in the books, it’s time once again for a revised sex offender flow chart. The revised chart is available here. The changes are summarized below.
New reportable offenses. Session Law 2013-33 added human trafficking under G.S. 14-43.11 to the list of sexually violent offenses that require sex offender registration, but only when the crime is committed against a person under 18 years old, or against any person with the intent that he or she be held in sexual servitude. (Sexual servitude under G.S. 14-43.13 is already a reportable offense.) Qualifying offenses committed on or after December 1, 2013 are reportable.
Session Law 2013-368 made several amendments related to human trafficking and prostitution offenses. Most notably for the purpose of today’s post, the act repeals two reportable offenses, promoting prostitution of a minor (G.S. 14-190.18) and participating in the prostitution of a minor (G.S. 14-190.19), and replaces them with two new reportable offenses, patronizing a prostitute who is a minor or mentally disabled (G.S. 14-205.2(c) and (d)), and promoting prostitution of a minor or mentally disabled person (G.S. 14-205.3(b)). The new offenses are reportable for offenses committed on or after October 1, 2013. Though the repealed offenses are removed from the definition of a sexually violent offense in G.S. 14-208.6(5), a savings clause in the legislation makes fairly clear that the prior law continues to require registration for offenses committed before the new law’s effective date.
Extra factual findings that trigger registration. For most reportable crimes, registration flows automatically from a defendant’s conviction. Some crimes, however, require the finding of some additional fact or facts in order to be reportable. For example, a kidnapping, abduction of children, or felonious restraint conviction meets the definition of an “offense against a minor” only when the victim of the crime is a minor and the defendant is not the minor’s parent. G.S. 14-208.6(1m). The revised chart includes a reference to State v. Arrington, __ N.C. App. __, 741 S.E.2d 453 (2013), which held that the court is not limited to the elements of the conviction offense when making these additional findings. (I think this could raise a Blakely issue if the additional facts trigger increased post-release supervision or a longer maximum sentence, as I noted in this prior post. The issue did not come up in Arrington because of the defendant’s offense date.)
Aggravated offense: Still elements only. In contrast to the rule from Arrington, the procedure for determining whether a crime meets the definition of an aggravated offense is a purely elements based analysis. We were reminded of that once again last week in State v. Green, __ N.C. App. __, 2013 WL 4441921 (N.C. Ct. App. Aug. 20, 2013), in which the court of appeals held that even a first-degree forcible sexual offense is not an aggravated offense. The crime of sexual offense does not necessarily require penetration as an element (it can be committed in ways that do not involve penetration), and so it is never an aggravated offense—even when the facts of the particular case clearly establish penetration. Green is added to the revised chart in the “NOT AGGRAVATED” section.