Last month the supreme court decided State v. Moir. It is a case about how a state sex crime—namely, indecent liberties with a child—fits within the offense tiering system set out in the federal Sex Offender Registration and Notification Act (SORNA).
It has been a while since I last blogged about this topic, so let’s start with some background.
Sex offenders who aren’t required to register for life can petition for removal from the registry 10 years from the date of initial county registration. G.S. 14-208.12A. The superior court judge hearing that petition may grant relief only if, among other things, doing so would “compl[y] with the provisions of the federal Jacob Wetterling Act, as amended, and any other federal standards applicable to the termination of a registration requirement or required to be met as a condition for the receipt of federal funds by the State.” G.S. 14-208.12A(a1)(2).
As noted on this blog since 2009, that finding, which I’ll call the Wetterling finding, effectively incorporates an important bit of federal law into our state sex offender registration regime. As a matter of state statute, a judge can’t let someone off the registry if doing so would violate relevant federal laws and regulations—even though North Carolina hasn’t enacted other state laws incorporating those federal standards explicitly. (Even now, only 17 states are substantially compliant with SORNA, and North Carolina isn’t one of them.)
Easily the most important federal law that a judge must consider when hearing a petition to terminate registration is the length of registration period that would be required for the offense under federal law. Federal law groups crimes into three tiers—Tier I, Tier II, and Tier III—that require registration for 15 years, 25 years, and life, respectively. So, even though G.S. 14-208.12A allows for a petition to terminate after 10 years, the upshot of the Wetterling finding is that many offenders will not be able to petition successfully at that point, because the judge would not be able to find that removal would comply with the lengthier minimum federal registration period. Only for Tier I offenders with a defined “clean record” (discussed here) could a judge make the finding necessary to allow removal in as few as 10 years.
The federal tiers are defined in SORNA, largely by reference to a set of benchmark federal crimes. For example, a state offense should be considered Tier III (the most serious tier) if it is comparable to or more severe than aggravated sexual abuse under 18 U.S.C. § 2241. In this prior post I summarized the tier definitions. As I noted there, however, rehashing the federal definitions is the easy part. The hard part is actually sorting North Carolina’s sex crimes into the tiers. How do you do it—especially when our crimes don’t all have elements that align neatly with the benchmark federal offenses?
That brings us to Moir.
In Moir, the defendant was convicted of indecent liberties with a child in 2001. He inappropriately touched a four-year-old’s genital area and masturbated in front of the child. He registered as a sex offender in 2002. Ten years later, in 2012, he petitioned for removal from the registry.
The presiding judge found only one obstacle to removal: that it would run afoul of federal law to let the petitioner off the registry after only 10 years. The court found that touching of a victim’s genital area was “sexual contact” as defined in 18 U.S.C. § 2246, and thus comparable to or more serious than “abusive sexual contact” under 18 U.S.C. §2244—a benchmark offense for Tier II sex crimes under SORNA. (Arguably the trial court’s reasoning should have led it to conclude that this was a Tier III offense by virtue of the victim’s young age; abusive sexual contact against a minor under 13 would be Tier III. The wrinkle turns out not to matter for now, although I think the supreme court was subtly flagging it in footnote 5.) Because Tier II offenses require a minimum registration period of 25 years, the court concluded that removal would not comply with the Wetterling Act, as amended, and denied the petition.
The defendant appealed.
The court of appeals vacated the trial court order denying relief, concluding that the trial court erred by considering the particular facts of the defendant’s case when evaluating the federal tier of his offense. Many cases over the years have shown that indecent liberties can be committed in ways that don’t involve any contact at all, much less “sexual contact” as specifically defined in federal law. Had the trial court considered only the elements of the offense, it would, the court said, have concluded that indecent liberties was Tier I—just like the court of appeals did in In re Hamilton, 220 N.C. App. 350 (2012) (discussed here), and In re McClain, 226 N.C. App. 465 (2013) (discussed here).
The State sought discretionary review, arguing that a trial court ought to be able to consider the underlying facts of a defendant’s registration offense when determining the appropriate federal tier.
The supreme court disagreed. A unanimous court concluded that Congress intended for tiering to be done through a categorical, elements-based approach. The court reasoned that SORNA’s legislative language suggests as much, and that a fact-based approach would raise difficult logistical, factual, and fairness issues—especially for trial courts evaluating older offenses. Slip op. at 21 (“[U]se of the ‘circumstance-specific approach’ would, in some instances, force trial courts to base their decisions on unresolved evidentiary issues and unproven factual allegations, and result in what amounts to a mini-trial concerning the exact nature of a defendant’s earlier conduct in which the defendant might be unable to effectively defend himself or herself due to the passage of time and other factors.”). Federal appellate courts to have considered the question have reached the same result. United States v. Alexander, 802 F.3d 1134 (10th Cir. 2015); United States v. White, 782 F.3d 1118 (4th Cir. 2015); United States v. Cabrera-Gutierrez, 756 F.3d 1125 (9th Cir. 2013).
If the opinion stopped there, it would be pretty clear that indecent liberties would always be Tier I. If the crime can ever be committed in ways that involve no contact at all, then it surely would not categorically map to the benchmark crimes in Tier II or Tier III that require a “sexual act” or, at a minimum, “sexual contact.”
But it didn’t.
I’ll gloss over this a bit for brevity’s sake (he said in the middle of a 1,900-word blog post), but a counterpart to the categorical approach generally used to analyze state crimes for various purposes under federal law is the so-called modified categorical approach.
The modified categorical approach applies when a person has a conviction under a statute that is divisible. A divisible statute is one that defines more than one offense, at least one of which might be covered under the relevant federal definition. If a person’s record indicates that he or she has a conviction for divisible offense, the modified categorical approach allows the court to look at certain official documents—such as the indictment or a written plea agreement, see Shepard v. United States, 544 U.S. 13 (2005)—to determine which of the several offenses defined in the statute the defendant was actually convicted of. The approach is complicated and evolving and has been the subject of many recent appellate cases. See, e.g., Descamps v. United States, 570 U.S. __, 133 S. Ct. 2276 (2013). Note that the document review allowed under the modified categorical approach does not open the door to broad consideration of the factual information that might obtained from the review. It just allows the court to figure out the specific offense of conviction—which must then be evaluated based on its particular elements.
The supreme court discussed the modified categorical approach in Moir because it might be relevant here. That’s because indecent liberties might be a divisible statute.
As you probably know, the single statute defining indecent liberties with a child describes two paths to committing the offense. Subdivision (a)(1) of G.S. 14-202.1 describes a crime based on “immoral, improper, or indecent liberties” with a child, while subdivision (a)(2) refers to a “lewd and lascivious act upon or with the body” of a child. Looking at the statute in isolation could support the conclusion that it describes two crimes with distinct elements. As the supreme court noted in Moir, however, North Carolina’s courts have never had to answer the question.
And other courts are divided on it. In a SORNA case out of the Eastern District of Oklahoma, the Tenth Circuit concluded in White, 782 F.3d 1118, that it is divisible (and that a conviction under subdivision (a)(1) is Tier I because it doesn’t necessarily involve contact). But in another context (whether indecent liberties is a violent felony under the federal Armed Career Criminal Act), the question fragmented the Fourth Circuit, with at least four judges concluding that it isn’t. United States v. Vann, 660 F.3d 771 (4th Cir. 2011). As Judge King wrote in his concurring opinion, the “two subsections have been treated interchangeably by the North Carolina courts, and those courts have consistently recognized that the same behavior can be prosecuted under either subsection.” Id. at 783 (King, J., concurring).
Even if the statute is deemed divisible, it’s not crystal clear where the modified categorical analysis would go from there. The supreme court has held that subdivision (a)(1) does not require the State to prove contact, State v. Hartness, 326 N.C. 561 (1990). But while the court of appeals has, several times, concluded that no physical contact is required for prosecutions under (a)(2), see, e.g., State v. Hammett, 182 N.C. App. 316 (2007), the supreme court has never considered the question.
Given the uncertainty, the Moir court remanded the case for, first, consideration of whether G.S. 14-202.1 is divisible. If it is, the trial court is to apply a modified categorical approach to determine (based on a review of the documents allowed under Shepard and its progeny) which of the two offenses Mr. Moir was convicted of. And if it turns out that it was version set out in subdivision (a)(2), the trial court is instructed to determine—based on the elements of the crime described in (a)(2), not based on facts that may have emerged during its document review—whether that offense is comparable to or more severe than “abusive sexual contact” under 18 U.S.C. § 2244.
If the trial court gets that far, note that the sexual contact described in the relevant federal law is 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.” If the court concludes that G.S. 14-202.1(a)(2) can be violated without physical contact, or by physical contact different from that defined in federal law (like a “french kiss,” for example, see Hammett, 182 N.C. App. 316), then even (a)(2) may not be comparable to any of the benchmark federal offenses that would elevate it above Tier I.