by School of Government faculty member Jamie Markham
In an earlier post I wrote about the satellite-based monitoring (SBM) effective-date question resolved by the court of appeals in State v. Cowan. To paraphrase Inigo Montoya, let me sum up: August 16, 2006 is the effective date that matters for SBM. Today, I want to come back around to another issue discussed (but not finally resolved) in Cowan: what is an offense that “involved the physical, mental, or sexual abuse of a minor,” and what should the court look at to determine whether an offender committed one?
To recap the general facts of the case, Mr. Cowan pled guilty to solicitation to commit indecent liberties with a child for sexual acts involving a four-year-old girl. At his G.S. 14-208.40B SBM determination hearing, the court ruled that he was not a sexually violent predator, not a recidivist, and not an aggravated offender, and that he had not been convicted of rape or sexual offense of a child by an adult offender under G.S. 14-27.2A or -27.4A. Thus, he did not fall in any of the categories that trigger mandatory lifetime enrollment in SBM. The court did, however, decide that Cowan had committed an offense that “involved the physical, mental, or sexual abuse of a minor,” and that based on a DOC risk assessment (his Static-99 scored out “High”) he required the highest possible level of supervision and monitoring. As a result, the judge ordered him to enroll in SBM for a period specified by the court—in this case, life. (For ease of reference, I’ll point out that DOC refers to SBM enrollees who aren’t subject to mandatory lifetime SBM as “conditional” offenders—as in, whether and how long they are monitored is conditioned upon the results of a risk assessment and the discretion of the court.)
Cowan argued that determinations of whether an offense involved the physical, mental, or sexual abuse of a minor should, like aggravated offense determinations under State v. Davison and State v. Singleton (discussed here), be based solely upon the elements of the conviction offense. And under that approach, he maintained in his brief, solicitation to commit indecent liberties would not qualify as abuse of a minor for two reasons. First, the target crime of indecent liberties does not, in a categorical, elemental sense, require a sexual act, physical force, or mental abuse. Second, a solicitation to commit that crime—complete upon merely asking another to commit it—does not necessarily require any physical, mental, or sexual abuse at all.
The court of appeals disagreed—even after assuming (without deciding) that the law requires an elements-based approach. Through a careful analysis of the dictionary definition of “involve,” the court ruled that G.S. 14-208.40(a)(2) encompasses both completed acts of abuse and inchoate “acts that create a substantial risk that such abuse will occur.” So, we know that a solicitation to do something can still involve that something within the language of the SBM law.
But what’s the something?
“Aggravated offense” is defined in G.S. 14-208.6(1a). That definition itself includes several essential elements (penetration and force or victim age), against which the elements of the conviction offense are mapped to determine whether the aggravated-offense requirements are satisfied. By contrast, “physical, mental, or sexual abuse of a minor” is undefined; the term first appeared in the General Statutes in 1996 in the context of special supervision conditions for certain probationers and post-release supervisees. S.L. 1996-18-es2, § 20.14. It’s harder, therefore, to know what elements to look for in a conviction offense to determine whether it meets the definition. Would employing a minor in an offense against public morality under G.S. 14-190.6 be covered? It necessarily involves a minor, but is it “abuse”? What about the sexual exploitation of a minor crimes? Solicitation of a child by computer? Even if you could look at the facts behind those convictions, it’s not clear from Cowan precisely which facts would be necessary to prove that “abuse of a minor” occurred.
Thus far, the best we can say as a matter of case law is that indecent liberties qualifies as sexual abuse of a minor under Cowan (and State v. Morrow) and that statutory rape of a 13-, 14-, or 15-year-old under G.S. 14-27.7A(a) qualifies under State v. Smith. 687 S.E.2d 525 (2010) (“Statutory rape is, by definition, an offense involving the sexual abuse of a minor.”). As far as which other crimes might also qualify, I sometimes suggest looking at the definition of “abused juvenile” in G.S. 7B-101(1) as a starting point for arguments about which crimes might rise to the level of “abuse.”
Finally, the Cowan court also noted that the trial court erred by ordering the defendant to enroll in SBM for life. For conditional offenders under G.S. 14-208.40(a)(2)—who have necessarily been deemed to fall outside the lifetime SBM categories set out in G.S. 14-208.40(a)(1) or -208.40(a)(3)—the “period of time . . . specified by the court” should, the court said in a footnote, be a “term of years,” not life.