Petitions for Removal from the Sex Offender Registry: The Wetterling Finding — Part II

In my previous post I wrote about In re Hamilton, a recent appellate case involving petitions to terminate sex offender registration. In Hamilton, the court of appeals held that a trial court erred when it found under G.S. 14-208.12A that removing a person convicted of indecent liberties with a minor from the sex offender registry after 10 years would not comply with federal standards. Rather, the court concluded, removal after 10 years would comply because (a) indecent liberties would be a tier 1 offense under the Sex Offender Registration and Notification Act (SORNA) and thus subject to a 15-year minimum registration period; and (b) that minimum registration period could be further reduced to 10 years based on SORNA’s “clean record” provision.

Drawing from Hamilton, this post sets out a framework for thinking about the “Wetterling finding” on Form AOC-CR-262. That finding, #7 on Side Two of the form, flows from G.S. 14-208.12A(a1)(2), which says the court may only grant a petition when doing so would comply federal standards “required to be met as a condition for the receipt of federal funds by the State.” To be clear, this analysis does not replace the baseline state law requirement that a non-lifetime registrant may only petition for removal from the registry 10 years from the date of initial county registration. G.S. 14-208.12A(a). And nothing in federal law trumps North Carolina’s rule that recidivists, sexually violent predators, and persons convicted of an aggravated offense must register for life. G.S. 14-208.23. Rather, this is an overlay that apparently must be considered in addition to those baseline rules, in light of G.S. 14-208.12A(a1)(2). I say “apparently” because the Hamilton court never affirmatively held that federal regulations as to registration length apply in North Carolina via G.S. 14-208.12A(a1)(2). The court of appeals certainly treated them as though they do, but as John Rubin pointed out in his comment to yesterday’s post, the threshold question of applicability wasn’t actually before the court.

SORNA covers lots of things, but for purposes of this discussion the relevant issue is registration length. SORNA creates three tiers of sex offenders, tier I, tier II, and tier III. Tier I offenders must register for at least 15 years, tier II offenders must register for at least 25 years, and tier III offenders must register for life. 42 U.S.C. § 16915(a). Given that North Carolina’s registry has only been in existence since 1996, nobody has been on it for more than 16 years. Thus, if the federal regulations do indeed apply, the only offenders for whom a court could make the Wetterling finding would be those who were convicted of a tier I offense. Anyone else would have to be registered for at least 25 years to be eligible for removal in a SORNA-compliant regime. (It’s possible, I suppose, that a person registered in North Carolina for an out-of-state crime may have previously accrued some time on another state’s registry. That time does not count toward the requisite 10-year period under state law—see this post about the meaning of “initial county registration”—but it probably could count toward the minimum federal requirement. The U.S. Attorney General’s final guidelines on SORNA say that the required registration period begins to run upon release from custody for an offender sentenced to incarceration and at the time of sentencing for an offender sentenced to probation. Nothing in the regulations says all of the minimum registration period must be from the same jurisdiction. 73 Fed. Reg. 38030, 38068 (July 2, 2008).)

What exactly is a tier I offense? I’ve discussed it and speculated about it in prior posts, but I’ve never actually spelled out the full definitions of the SORNA tiers on this blog.

Tier I is a residual category that includes sex offenders other than tier II and tier III sex offenders. 42 U.S.C. § 16911(2). So, the only way to identify tier I offenses is to know which offenses fall into tiers II and III.

Tier II offenses (defined in 42 U.S.C. § 16911(3)) are those other than tier III offenses (described below) that are punishable by imprisonment for more than one year and:

Are comparable to or more severe than the following offenses, when committed against a minor (or an attempt or conspiracy to commit them):

  • Abusive sexual contact under 18 U.S.C. § 2244 [The crime of abusive sexual contact generally requires, among other things, that the defendant engage in or cause “sexual contact” with or by another person, defined in 18 U.S.C. § 2246(3) as the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person];

OR

That involve:

  • Use of a minor in a sexual performance;
  • Solicitation of a minor to practice prostitution; or
  • Production or distribution of child pornography;

OR

  • That occur after the offender becomes a tier I sex offender. [This provision won’t come into play in our regime because anyone who commits a second or subsequent sex crime would be a recidivist and thus required to register for life under G.S. 14-208.23.]

U.S. Department of Justice (USDOJ) guidelines on SORNA summarize the tier II requirements nicely by saying that they essentially cover: (1) offenses involving the use of minors in prostitution; (2) offenses against minors involving sexual contact—i.e., any sexual touching of or contact with the intimate parts of the body, either directly or through the clothing; and (3) offenses involving the production or distribution (but not the mere possession) of child pornography. 73 Fed. Reg. 38030, 38053–54.

Tier III offenses (defined in 42 U.S.C. § 16911(4)) are those that are punishable by imprisonment for more than 1 year and:

Are comparable to or more severe than the following offenses (or an attempt or conspiracy to commit them):

  • Aggravated sexual abuse under 18 U.S.C. § 2241 or sexual abuse under 18 U.S.C. § 2242; [“Sexual abuse” crimes generally require, among other things, the commission of a “sexual act,” defined in 18 U.S.C. § 2246 as contact between the penis and the vulva, the penis and the anus, the mouth and the penis, the mouth and the vulva, or the mouth and the anus; penetration of the anal or genital opening of another by a hand, finger, or any object; or direct touching, not through the clothing, of the genitalia of a person under 16.]
  • Abusive sexual contact under 18 U.S.C. § 2244 [described above in the tier II offense definition] when committed against a minor under 13 years old;

OR

  • Involve kidnapping of a minor (unless committed by a parent or guardian);

OR

  • That occur after the offender becomes a tier II sex offender. [Again, this provision won’t come into play here because anyone who commits a second or subsequent sex crime would be a recidivist and thus required to register for life under G.S. 14-208.23.]

If the petitioner’s registration offense does not match up with any of the descriptions set out above, then North Carolina would be permitted under SORNA to treat it as a tier I offense. (The state might actually choose to require a longer registration period, but again, the question before the court at this point is whether removal from the registry would comply with the federal standards themselves.)

How exactly should the court go about determining whether a registration offense meets the tier II or tier III definitions? Federal regulations say that when assessing whether an offense satisfies the tier II or tier III classification, “jurisdictions generally may premise the determination on the elements of the offense, and are not required to look to underlying conduct that is not reflected in the offense of conviction.” 73 Fed. Reg. at 38053. That is reminiscent of (although not directly governed by) North Carolina’s approach to determinations of “aggravated offenses” for our satellite-based monitoring law: the court looks only at the elements of the conviction offense, not at the facts that may have led to the conviction. (That issue is discussed here.) Under that approach, it seems right that a crime like indecent liberties—which can, by its elements, be committed in ways that do not involve “sexual contact” or “sexual acts” as defined above—could be a tier I offense in a SORNA-compliant regime. See Jessica Smith, North Carolina Crimes: A Guidebook on the Elements of Crime 247–48 (7th ed. 2012) (collecting cases on indecent liberties, including, for example, a case involving a defendant who French kissed a child and another in which the defendant secretly videotaped a teenager trying on clothes). Federal regulations make an exception to the elements-based approach for tier classifications that depend on victim age: those requirements must be obeyed even for crimes whose elements do not specify that the victim must be below the threshold age if the victim was in fact below it. 73 Fed. Reg. at 38053.

If the court concludes through this approach that a registrant’s offense is not required to be a tier II or tier III offense under SORNA, then it would not violate SORNA to treat the offense as tier I and to grant his or her petition to come off the registry—if the person had been registered for 15 years. The only offenders registered for fewer than 15 years for whom the court could make the Wetterling finding are those who were convicted of tier I offenses and who also have a “clean record” as defined in 42 U.S.C. § 16915(b)(1). As I discussed yesterday, to have a clean record, the person must:

  • Not be convicted of any subsequent offense for which imprisonment for more than 1 year may be imposed;
  • Not be convicted of any subsequent sex offense;
  • Successfully complete any period of supervised release, probation, and parole; and
  • Successfully complete an appropriate sex offender treatment program certified by a jurisdiction or by the Attorney General.

USDOJ guidelines on SORNA note that the requirement to “successfully complete” any period of supervised release, probation, and parole means “completing those periods without revocation.” 73 Fed. Reg. at 38068. If a tier I petitioner satisfied all four prongs of the clean record requirement, the court could make the Wetterling finding and grant his or her petition after 10 years of registration.

If fewer than 10 years have passed since the person’s date of initial county registration, he or she is not eligible for removal from the registry. That’s really just a matter of state law under G.S. 14-208.12A, but it would also be true under the federal regulations.

I apologize for the length of this post. This is a difficult issue, and my sense—based on the many questions I have been asked about it—is that people don’t have ready access to the resources they may need to resolve it. If nothing else, I hope the post will be useful to the extent that it collects and links to the primary source materials you will need to decide whether the federal regulations apply, and, if so, a starting point for how to apply them. If the General Assembly takes any action related to SORNA compliance during the short session, I’m sure I’ll write about it here.