Reportable Kidnapping

In the course of robbing a convenience store, a man restrains a 17-year-old clerk. Suppose the parties work out a plea to second-degree kidnapping. Everything is fine until the judge advises the defendant of the maximum permissible punishment for his Class E crime: 136 months. “136 months?” his lawyer said, puzzled. “I thought it would be 88.” “It would be,” the court replied, “if this crime didn’t require registration as a sex offender.”

The judge is correct. Kidnapping—first- or second-degree—is one of three North Carolina crimes that can fall into the category of “offense against a minor.” G.S. 14-208.6(1i). The other two are abduction of children (G.S. 14-41) and felonious restraint (G.S. 14-43.3). All three require sex offender registration if (1) committed against a minor (2) by a defendant who is not the minor’s parent. When those two additional facts apply, the crime becomes a reportable offense for which defendant must register as a sex offender. Registration in that case is mandatory; is not optional within the discretion of the trial court judge, as it is for crimes like secretly peeping or sale of a child. There is no exception for a defendant under 18 who commits a covered offense against another minor.

People are sometimes surprised to learn about these reportable sex crimes that have nothing to do with sex. But the sex offender registry is actually called the “Sex Offender and Public Protection Registration Program,” and the Generally Assembly specifically found that certain types of offenses other than sex crimes, such as kidnapping, “pose significant and unacceptable threats to the public safety and welfare of the children in this State.” G.S. 14-208.5.

Several aspects of the additional factual findings that make kidnapping and related crimes reportable are worth a closer look.

Committed against a minor. The term “minor” is undefined in this context, but it almost certainly refers to a victim under the age of 18. When related statutes define the word, 18 (not 16) is the age they choose. See, e.g., G.S. 14-43.10(a)(4) (defining a minor as a person less than 18 for purposes of the human trafficking law); 14-203 (same for prostitution law); 14-190.13 (same for various sexual exploitation crimes).

Not the minor’s parent.  “Parent” in this context means biological or adoptive parent. It does not include legal custodians, S.L. 1999-363 (removing the words “legal custodian” from the definition of an offense against a minor), or a stepparent, State v. Stanley, 205 N.C. App. 707 (2010).

Procedure for finding additional facts. In State v. Arrington, __ N.C. App. __, 741 S.E.2d 453 (2013), the court of appeals held that the trial court is tasked with finding the additional facts that elevate a kidnapping, abduction, or restraint conviction to an “offense against a minor.” The appellate court went on to say that the “trial court is not restricted to simply considering the elements of the offense for which the defendant was convicted” in making that determination—unlike aggravated offense determinations for satellite-based monitoring purposes, which are restricted to the elements of the conviction offense. Sometimes extra evidence will not be necessary. For example, abduction of children will always be committed against a minor because that is an element of the offense. In other cases, though, the State would apparently need to present other evidence of the victim’s age, along with proof that the defendant is not the victim’s parent.

If the additional facts are found, the finding is memorialized on the current forms by checking the “reportable conviction” box on the judgment and commitment, and then by checking finding 1.a on form AOC-CR-615.

A Blakely issue? These additional findings raise a potential constitutional concern. It is probably fine to require someone to register as a sex offender based on findings made by a judge; sex offender registration is not punishment. State v. Sakobie, 165 N.C. App. 447 (2004). But reportable convictions are also subject to additional sentencing consequences in North Carolina. All reportable felonies receive a 5-year term of post-release supervision, G.S. 15A-1368.2(c), and Class B1–E reportable felonies are subject to a 48-month maximum sentence enhancement (their maximum sentence is 120 percent of the minimum plus 60 months, instead of the usual plus 12), 15A-1340.17(f). To the extent that the additional factual findings trigger additional punishment, it seems to me that they must be proved to a jury beyond a reasonable doubt if not admitted to by the defendant. Blakely v. Washington, 542 U.S. 296 (2004). There is no statutory procedure for that, but it could probably be done by way of a special verdict. Cf. State v. Blackwell, 361 N.C. 41 (2006) (approving of a special verdict as a procedural device by which the jury may answer specific questions—the existence of aggravating factors in that case—distinct from the general verdict).


6 comments on “Reportable Kidnapping

  1. This type of reportable conviction is another unfortunate demonstration of the application of sex offender law and registration mandate to cases that many, if not most, times have zilch to do with sexual conduct. Additionally, these types of cases require the registration under the “public protection” arm of the statutes. Yet, they are then folded into the glob of folks who are required to register due to a sex offense conviction. The state needs either to repeal this most ridiculous form of scarlet letter or otherwise create a registration mechanism that identifies the matter as not being related to any sexual form of conduct, is significantly shorter in duration and does apply the same forms of requirement as in a true sex offense case. Trying to explain to others, no matter whether they be family, friends, prospective employer or other, as to how one is not actually a “sex offender” is a further form of punishment that doesn’t meet the crime. Additionally, any failure to properly comply with registration is treated as being a crime of failing to register as a sex offender and proper compliance mandates such issues as not living within 1000 feet of a child care or other facility where minors are located. It’s simply draconian under most of the facts of these types of cases. Then, try to get off that list. While sometimes such can be achieved, many times is regrettably and unfairly denied and most likely because a judge doesn’t want to sign their name to an order removing a person from the “sex offender” registration list.

  2. I’m fine with requiring people who forcibly kidnap someone to register for a certain time period (even if it is committed during a robbery) as a sort of additional enhancement to encourage them not to repeat this offense. The unfortunate aspect of this is, as Ken commented also I believe, that this registry is not commonly known as “public protection” and just shortened to “sexual offender” so even without a sex offense people are still given a “scarlet letter” (although, really, I kinda wanna know who in my area is capable of these kinds of crimes for the safety of me and my children).

    What concerns me more than the fact that someone could rob a convenience store and end up being put on the registry is the fact that someone could be found guilty of secret peeping, or worse sale of child, and NOT be put on the registry. To me, while not the same level of offense statutory wise, those are crimes that should DEFINITELY require registry.

  3. Do registrations for non-sexual registrations fall under the Jacob Wetterling Act?

    • Kidnapping is a “specified offenses against a minor” under federal law when committed by a person other than the victim’s parent or guardian. It would be a Tier III offense under the Sex Offender Registration and Notification Act (SORNA), requiring lifetime registration. 42 U.S.C. § 16911(4)(B).

  4. Fayetteville North Carolina Cumberland County family needing help children services at juvenile court judge has removed children due to car breaking down and mother on disability Judge signed in order to destroy evidence before retiring Children Services Workers has been terminated from their jobs for violation a parental rights if able to help please feel free to contact 910)853-5391 the millington family

  5. […] The plot thickens from there. Kidnapping, abduction of children, and felonious restraint are defined as “offenses against a minor” for reportability purposes, meaning they require sex offender registration when the victim is a minor and the defendant is not the minor’s parent. G.S. 14-208.6(1m). Minor is undefined in that context, meaning we almost certainly fall back to the background rule of under 18. That is the rule under relevant federal law, which defines “minor” for purposes of the Sex Offender Registration and Notification Act (SORNA) as “an individual who has not attained the age of 18 years.” 42 U.S.C. § 16911(14). Of course we know North Carolina isn’t SORNA compliant (we are, as a lawyer friend and I sometimes say, “sorta” compliant), but I assume our legislature intended the same age to apply in North Carolina. Whatever the relevant facts may be, the court of appeals has said a trial court is not limited to the elements of the conviction offense in finding them. State v. Arrington, 226 N.C. App. 311 (2013) (discussed here). […]