The General Assembly last amended our satellite-based monitoring (“SBM”) laws in 2021, substantially reworking who qualifies for SBM, the process of petitioning for termination of SBM, and the potential length of SBM (among other changes). If you are still adjusting to those new rules, buckle up. Tucked into the back of S.L 2023-143 (SB 20) are new amendments that once again substantially revise North Carolina’s SBM scheme (in Part VIII, starting at page 44 of the linked bill), effective for SBM orders entered on or after October 1, 2023. This post examines those changes and their potential implications.
Current SBM Law. First, a little review. Jamie Markham did an excellent post summarizing the 2021 changes here. Under current law, enrollment in SBM is capped at 10 years for all offenders and is no longer mandatory for any category of offender. Defendants convicted of an aggravated offense, classified as a reoffender or sexually violent predator, or convicted of statutory rape or sex offense of child by an adult may qualify for SBM, but only if the court determines that the offender “requires the highest possible level of supervision and monitoring.” G.S. 14-208.40A(c1). If the highest level of supervision and monitoring is required, the court must order a 10-year term of SBM for defendants in this first category. If the highest possible level of supervision and monitoring is not required, SBM may not be ordered.
For defendants convicted of a registerable offense involving the abuse of a minor but not otherwise meeting the criteria above, SBM is a possibility, but again, only where the court determines that the offender requires the highest possible level of supervision and monitoring. If a defendant with a qualifying conviction meets that standard, SBM must be ordered for some amount of time not to exceed 10 years, with the exact term to be set by the trial court, in its discretion. In all SBM cases, the determination of whether the highest level of supervision and monitoring is required for any defendant is made by the trial judge following a mandatory risk assessment and any other relevant evidence before the court.
Longer (and Potentially Longer) Periods of SBM. Under the 2023 revisions, gone is the ten-year cap on SBM for all offenders. Instead of the mandatory ten years for the first group of defendants—those convicted of aggravated offenses; those who qualify as reoffenders or as sexually violent predators; and those convicted of statutory rape or sex offense of a child by an adult—they must be placed on SBM for life if the court determines that the highest level of supervision and monitoring is required. For defendants in the second group—offenses involving abuse of a minor—the court must choose a term in its discretion not to exceed fifty years. SBM is still only an option for defendants who require the highest level of supervision and monitoring, but the length of SBM for qualifying defendants will be much longer for people in the first group and potentially (but not necessarily) much longer for people in the second group.
Treatment of the “Reoffender” Category Will Be More Complicated. The new law provides for different treatment for different crimes when the defendant offends for a second or subsequent time, with some eligible for lifetime SBM and some eligible for only the term of years. It also expands the meaning of “reoffender”.
Under the new G.S. 14-208.40A(c), a trial court considering an SBM petition must determine whether the defendant is a “reoffender” of certain crimes. For purposes of this subsection, the “reoffender” category includes more than one conviction of the following offenses from different terms of court:
- First-degree forcible rape, G.S. 14-27.21
- Second-degree forcible rape, G.S. 14-7.22
- Statutory rape of a child by an adult, G.S. 14-27.23
- Statutory rape of a child under 15 by one more than 6 years older than the victim, G.S. 14-27.24
- First-degree sexual offense, G.S. 14-27.26
- Second-degree sexual offense, G.S. 14-27.27
- Statutory sexual offense of a child by an adult, G.S. 14-27.28
- First-degree statutory sexual offense, G.S. 14-27.29
- Statutory sexual offense against a child under 15 by one more than 6 years older than the victim, G.S. 14-27.30(a)
- Human Trafficking, G.S. 14-43.11
- Sexual Servitude, G.S. 14-43.13
- Incest against a child under 13 by one who is at least 12 and at least four years older than the victim, incest against a child who is 13, 14, or 15 by one at least 6 years older than the victim, and incest against a child who is 13, 14, or 15 by one more than 4 but less than 6 years older than the victim, G.S. 14-178(b)(1) & (2)
- First-degree child exploitation, G.S. 14-190.16
- Patronizing a prostitute with a severe or profound mental disability, G.S. 14-205.2(d)
- Promoting prostitution of a minor or of any person with a severe or profound mental disability, G.S. 14-205.3(b)
- Child abuse by permitting, encouraging, or committing any act of prostitution by or with the child, G.S. 14-318.4(a1).
- Child abuse by committing or permitting the commission of sexual acts upon a child, G.S. 14-318.4(a2).
If the court determines the defendant has been convicted of two or more of the above offenses at different terms of court, the defendant qualifies as a reoffender and is subject to lifetime SBM if the person also requires the highest possible level of supervision and monitoring.
Under the new G.S. 14-208.40A(d), if the trial court determines that the defendant is not a reoffender of the above crimes (and does not fall into another category potentially requiring lifetime SBM) then the court must consider whether the offense involved the abuse of a minor and whether the defendant is a “reoffender” of certain other crimes. Those other crimes are as follows:
- Sexual activity with a student, G.S. 14-27.31
- Sexual activity by a substitute parent, G.S. 14-27.32
- Sexual battery, G.S. 14-27.33
- Incest not otherwise covered above, G.S. 14-178(b)(3)
- Using, employing, or permitting a minor to commit an obscenity offense, G.S. 14-190.6
- Indecent exposure by one at least 18 against a person under 16, G.S. 14-190.9(a1)
- Second-degree child exploitation, G.S. 14-190.17
- Third-degree child exploitation, G.S. 14-190.17A
- Indecent liberties with a child, G.S. 14-202.1
- Solicitation of a child by computer, G.S. 14-202.3
- Indecent liberties with a student, G.S. 14-202.4(a)
- Patronizing a minor prostitute, G.S. 14-205.2(c)
Under this new subsection, a person with two separate convictions for any of the above offenses from separate terms of court qualifies a person as a reoffender subject to a term of SBM up to 50 years when the person also requires the highest possible level of supervision and monitoring.
The statute does not specifically say how an offender with separate convictions from different terms of court is to be treated when one offense is from the lifetime SBM list of “reoffender” crimes and another offense is from the term of years “reoffender” list, but such a person would presumably qualify for the less restrictive term of years program (if the person also requires the highest level of supervision and monitoring).
Sexual Battery and SBM. Under the 2023 changes, sexual battery will be the only misdemeanor with the potential to trigger SBM upon a second conviction, which is a significant change from the 2021 law. While sexual battery has long triggered sex offender registration, it is the only misdemeanor in the above lists of offenses that the court must consider for purposes of the “reoffender” category. Sexual battery does not otherwise constitute an aggravated offense or fall into any of the other SBM categories. One confusing item: In the definitions section for sex offender registration and satellite-based monitoring, the definition of “reoffender” excludes misdemeanor convictions altogether. G.S. 14-208.6(3e) defines the term “reoffender” as a person with two or more felony reportable convictions. That definition was left unchanged by the new SBM revisions. This may have been an oversight given the new provisions in G.S. 14-208.40A(d), which expressly includes misdemeanor sexual battery as an offense capable of triggering SBM upon a second conviction (thereby expanding the meaning of “reoffender” under that subsection).
Constitutional Concerns. The new law seems likely to be challenged as unreasonable under the Fourth Amendment and the cases interpreting Grady v. North Carolina, 575 U.S. 306 (2015). The legislative changes in 2021 to our SBM program were designed to ameliorate the Fourth Amendment concerns expressed in the various court decisions about the former SBM law. Requiring much longer periods of enrollment may (re)implicate those concerns. On the other hand, many of the significant changes in 2021 remain unaffected by the 2023 revisions. SBM enrollees still have a clearer path to seek termination from the program. See G.S. 14-208.43 (for people ordered onto SBM on or after Dec. 1, 2021) and G.S. 14-208.46 (for people ordered onto SBM before Dec. 1, 2021). The decision to terminate a person from SBM continues to rest with a superior court judge and not an administrative agency (the Post-Release Supervision and Parole Commission). The requirement of an individualized judicial determination that a given defendant requires the highest possible level of supervision and monitoring before SBM can be ordered remains. Presumably, this means that many offenders will be considered for SBM and be found not to meet that standard. These changes seem sure to be at the front and center of any Fourth Amendment challenge.
Beyond the Fourth Amendment, there may be due process or other constitutional challenges surrounding the revisions, such as a challenge to the lack of statutory guidance on how a judge should exercise its discretion to decide (for instance) between a SBM term of 10 years and one of 45 years. We will have to wait and see how any arguments play out in our appellate courts (and potentially in federal courts). If they do arise, I will be sure to cover them here. Meanwhile, if defenders have pending SBM cases, it is likely in the client’s interest to have the hearing before these changes kick in. For all SBM orders entered on or after October 1, 2023, the length of SBM will be potentially much higher and sexual battery may be used to establish reoffender status.