In getting ready for the North Carolina magistrates’ fall conference and a session that I’m teaching on issuing process in domestic violence cases, I began thinking about the ways that North Carolina criminal law addresses domestic violence. The North Carolina General Assembly has made numerous changes and additions in this area of criminal law, collected below. If I omitted some part of North Carolina criminal law involving domestic violence cases, please let me know.
Crimes and Elements
Self-Defense and Retreat from Places Where the Defendant Has a “Lawful Right to Be”
Our appellate courts are beginning to issue decisions concerning the impact of the General Assembly’s 2011 changes to North Carolina law on self-defense. A case earlier this summer addressed whether a defendant has a duty to retreat before using deadly force in self-defense in a place where he or she has a “lawful right to be.” See State v. Bass, ___ N.C. App. ___, 802 S.E.2d 477, temp. stay and rev. granted, ___ N.C. ___, 800 S.E.2d 421 (2017). In Bass, the Court of Appeals held that the defendant did not have a duty to retreat and further had the right to have the jury instructed that he did not have a duty to retreat.
Many Questions and a Few Answers about Britny’s Law
This session, the General Assembly passed S.L. 2017-94, which creates a rebuttable presumption that certain domestic violence homicides are premeditated and deliberate and therefore constitute first-degree murder. WRAL explains here that the measure is known as Britny’s Law “in memory of Britny Jordan Puryear, a 22-year-old who was shot and killed by her live-in boyfriend, Logan McLean, in their Fuquay-Varina home on Nov. 6, 2014, after a four-year abusive relationship.” The bill raises many questions, which this post attempts to answer.
Counties May Impose Civil Penalties for Passing a Stopped School Bus
Four years ago, the General Assembly increased the criminal fine for passing a stopped school bus and enacted new license revocation and registration hold provisions. During the previous year—2012—there had been more than 1,300 misdemeanor charges for passing a stopped school bus and three felony charges, two for unlawfully passing a stopped school bus and striking a person and one for doing so and causing death. Not much has changed. In 2016, there were 1,400 misdemeanor charges for passing a stopped school bus and three felony charges for doing so and striking a person. This year, the General Assembly took a different tack. S.L. 2017-188 (S 55) authorizes counties to adopt ordinances that enforce the provisions of G.S. 20-217 by means of automated school bus safety cameras and impose civil penalties for violations.
Expanded Expunction Opportunities
In S.L. 2017-195 (S 445), the General Assembly made several changes to North Carolina’s expunction laws. Most importantly, the act expands the availability of relief in two ways: it reduces the waiting period to expunge older nonviolent felony and misdemeanor convictions, and it allows a person to obtain an expunction of a dismissal regardless of whether the person received any prior expunctions. Because the act states that it applies to petitions filed on or after December 1, 2017, the revised statutes apply to offenses, charges, and convictions that occur before, on, or after December 1, 2017. The tradeoff for this expansion is that information about expunctions, maintained by the Administrative Office of the Courts and otherwise confidential, is available for review by the prosecutor and useable to calculate prior record level at sentencing if the person is convicted of a subsequent offense. This part of the act applies to expunctions granted on or after July 1, 2018. The act makes other changes to create more consistency and uniformity in the expunction process.
Legislative Changes to Which Prior Convictions Can Support a Habitual Felon Charge
S.L. 2017-176 makes two important changes to which prior convictions can support a habitual felon charge. The legislation (1) clarifies the status of prior convictions from New Jersey and other states that don’t use the term “felony,” and (2) imposes a new requirement that a prior conviction from another state be for an offense that is “substantially similar” to a North Carolina felony.
Important Amendments to the “Revenge Porn” Statute
The General Assembly has amended G.S. 14-190.5A, the “revenge porn” statute. The statute now (1) applies to live streams as well as recordings, and (2) is not limited to images captured in the course of a “personal relationship.” However, it still leaves open questions about various types of digitally-generated images.
Whether “No” Means “No” in North Carolina
Attention has fallen on North Carolina for a 1979 court decision on withdrawal of consent during sexual intercourse. In State v. Way, 297 N.C. 293 (1979), the state supreme court held under North Carolina’s then-existing rape statutes that if a woman consents to sexual intercourse and in the middle of the act changes her mind, the defendant is not guilty of rape for continuing to engage in intercourse with her. The decision has drawn fierce criticism from the public and in legal circles. The criticism intensified after the General Assembly did not act on a bill introduced this session, Senate Bill 553, which would have permitted withdrawal of consent after intercourse begins consensually. People have asked me whether the apparent holding in Way is still the law in North Carolina. Is it true that a man would not be guilty of rape if he forcibly continued to have sexual intercourse with a woman after she withdrew consent? In my view, that may not be the law in North Carolina.
Convictions for Attempted Armed Robbery Based on Evidence of the Completed Crime
In North Carolina, the general rule is that “an attempt to commit a . . . felony is punishable under the next lower classification as the offense which the offender attempted to commit.” G.S. 14-2.5. However, the armed robbery statute, G.S. 14-87, makes it a class D felony to “take[] or attempt[] to take” property from another while in possession of a dangerous weapon. The specific terms of the statute therefore create an exception to the general rule, and render attempted armed robbery the same offense class as the completed crime. The fact that attempted armed robbery is specifically set out in the armed robbery statute and is the same offense class as armed robbery has created considerable doctrinal trouble. In the past month, the General Assembly has tried to fix the problems and the state supreme court has weighed in on an analogous issue.
Murder Charges and the Opioid Epidemic
Jeff wrote on Monday about efforts by North Carolina government officials to combat the opioid epidemic.The initiatives he highlighted, such as addiction treatment and needle exchange programs, primarily attack the problem from a public health perspective. Jeff noted the contrast between this approach and the criminal-drug-law enforcement response to the spread of crack cocaine in the 1990s.
That’s not to say, however, that the criminal justice system isn’t responding to the current crisis. In counties across the State, including New Hanover, Onslow, Pender, Pitt, Union, and Wake, prosecutors are pursuing second-degree murder charges against defendants who are alleged to have provided the opioids leading to victims’ deaths.
This post explores the basis for murder charges based on the unlawful distribution of drugs and what the State must prove at trial to establish a defendant’s guilt.