North Carolina Department of Justice
North Carolina Department of Justice
North Carolina Department of Justice
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Reply to:

John Aldridge, III

Law Enforcement Liaison Section

June 24, 2002

Sheriff Johnny M. Williams Warren County Sheriff's Office

P.O. Box 185 Warrenton, NC 27589

Re: Advisory Opinion: Sex Offender Registration Predicated on a Federal Conviction; N.C.G.S. § 14-208.6

Dear Sheriff Williams:

Previously, this office issued an advisory letter in response to your request for our opinion on the propriety of registering an individual as a sex offender based upon the individual's conviction for the federal offense of sexual abuse of a ward. In this April 11, 2002, advisory letter, we opined that, based on the facts of this particular case, the individual was required to register as a sex offender in North Carolina. Pursuant to a subsequent request by State Senator Frank Ballance on behalf of the subject of this inquiry, we agreed to re-evaluate this advisory letter to determine whether it should be re-issued in the form of an advisory opinion. We have examined all of the pertinent documents concerning the underlying federal criminal charge and it’s disposition and again are of the opinion that this defendant is required to register as a sex offender. The pertinent facts of this case, and our legal analysis, are set forth below.

FACTS

The defendant began employment at the Federal Correctional Institution, Butner (FCI Butner) on October 6, 1991, where she was employed as a Drug Treatment Specialist. In the course of her duties she interacted with an inmate who was enrolled in the Drug Abuse and Treatment Program. In approximately February 2001, the inmate contacted FCI Butner authorities and stated the defendant had engaged in sexual intercourse with him in the course of the treatment program at Butner. The defendant, on August 7, 2001, was charged in a two-count information with engaging in a sexual act with a person who was in official detention and who was under her custodial, supervisory, and disciplinary authority. Pursuant to a plea agreement, the defendant, on January 28, 2002, entered a plea of guilty to Count 1 of the information alleging sexual abuse of a ward, in violation of 18 U.S.C. § 2243(b). In return for this plea, Count 2 of the information was dismissed. Thereafter, the defendant was placed on probation for a period of 12 months; fined $2,500.00; and subjected to numerous special conditions of supervision. One of these special conditions of supervision was that the defendant register with the State of North Carolina as a sex offender.

ANALYSIS

Pursuant to N.C.G.S. § 14-208.7(a), a person who is a state resident and who has a reportable conviction shall be required to maintain registration with the sheriff of the county where the person resides. North Carolina G.S. § 14-208.6(4)c. defines a “reportable conviction” to include a conviction in a federal jurisdiction of an offense, which is substantially similar to an offense against a minor or a sexually violent offense, as defined by N.C.G.S. § 14-208.6(5). (emphasis added)

The registration requirement for persons convicted of federal offenses substantially similar to a “sexually violent offense” became effective April 3, 1997. This registration requirement applies to all persons convicted in a federal court on or after April 3, 1997, and to all persons released from a penal institution on or after that date. Session Laws 1997-15. (emphasis added)

In this case, the defendant pled guilty to a violation of 18 U.S.C. § 2243(b), Sexual Abuse of a Ward. The elements of this federal offense are that the defendant knowingly engaged in a sexual act, as defined in 18 U.S.C. § 2246(2), with a person who was in official detention and that this person was under the custodial, supervisory, and disciplinary authority of the defendant. The term “sexual act”, as defined in 18 U.S.C. § 2246(2), covers acts of intercourse.

The term “sexually violent offense”, as referenced in N.C.G.S. § 14-208.6(5) includes, in pertinent part, a violation of G.S. § 14-27.7 (Intercourse and Sexual Offense with Certain Victims). North Carolina G.S. § 14-27.7(a), provides, in pertinent part, that “. . . if a person having custody of a victim of any age or a person who is an agent or employee of any person or institution, whether such institution is private, charitable, or governmental, having custody of a victim of any age engages in vaginal intercourse or a sexual act with such victim”, such person is guilty of a Class E felony. Consent is not a defense to a charge under this section. The elements of N.C.G.S. § 14-27.7(a) are that a person has custody of the victim or is an agent or an employee of a person or institution having custody of the victim, and has vaginal intercourse or engages in a sexual act with the person who is in custody.

The defendant was convicted on January 28, 2002, of sexual abuse of a ward in violation of 18 U.S.C. § 2243(b). The victim in this case, an inmate confined at FCI Butner, was under the supervisory control of the defendant by virtue of his enrollment in the drug abuse and treatment program where the defendant worked. Consequently, the defendant's federal conviction for sexual abuse of a ward is an offense substantially similar to the “sexually violent offense” of intercourse and sexual offense with certain victims, as specified in N.C.G.S. § 14-27.7. Since the defendant is convicted of a federal offense substantially similar to a sexually violent offense as defined in N.C.G.S. § 14-208.6(5), and her conviction occurred after April 3, 1997, it is our opinion that the defendant must register as a sex offender. (emphasis added)

Further, it is our opinion that once an offender is convicted of a reportable offense, as defined in N.C.G.S. § 14-208.6(4), and falls within the applicable time line established for registration, the individual is subject to registration and no authority exists to alter this requirement.

Article 27A of Chapter 14 of the North Carolina General Statutes establishes a ten year registration requirement for persons convicted of certain sex offenses.

N.C.G.S. § 14-208.6A (1999). Pursuant to N.C.G.S. § 14-208.7(a):

A person who is a state resident and who has a reportable conviction shall be required to maintain registration with the sheriff of the county where the person resides. If the person moves to North Carolina from outside this state, the person shall register within ten days of establishing residence in this state, or whenever the person has been present in this state for 15 days, whichever comes first. . . . Registration shall be maintained for a period of ten years following release from a penal institution. If no active term of imprisonment was imposed, registration shall be maintained for a period of ten years following each conviction for a reportable offense. (Emphasis added).

North Carolina G.S. § 14-208.12A provides that the registration requirement under this program automatically terminates ten years from the date of initial county registration, if the person has not been convicted of a subsequent offense requiring registration. Effective October 1, 2001, new N.C.G.S. § 14-208.6C provides that, “the period of registration required by any of the provisions of this Article shall be discontinued only if the conviction requiring registration is reversed, vacated, or set aside, or if the registrant has been granted an unconditional pardon of innocence for the offense requiring registration.” (Emphasis added).

The registration provisions found in Article 27A consistently use the words “shall” and “all” when referring to when and who must register as a sex offender. Where the language of a statute is clear and unambiguous, the courts must give the statute its plain and definite meaning. Spruill v. Lake Phelps Vol. Fire Dept., Inc., 351

N.C.
318, 523 S.E.2d 672 (2000). It is a basic principle of statutory construction that, unless specifically stated otherwise, words of a statute must be construed in accordance with their common and ordinary meaning. Perkins v. Arkansas Trucking Service, Inc., 351 N.C. 634, 528 S.E.2d 902 (2000). Dictionaries may be used to determine natural and ordinary meanings of words used in statutes. State v. Fly, 127
N.C.
App. 286, 488 S.E.2d 614(1997). “In common or ordinary parlance, and in its ordinary signification, the term ‘shall’ is a word of command, and one which has always or which must be given a compulsory meaning; as denoting obligation.” Blacks Law Dictionary 1375 (6th Edition 1990). The word “all” means, “the whole of”, “every member of”, “individual component of.” Blacks Law Dictionary 74 (6th Edition 1990 ).

Consequently, the clear and unambiguous language of our Registry Program is that all persons convicted of a reportable offense on or after the appropriate effective dates, or released from a penal institution after these dates for a reportable conviction, must register as a sex offender. No exceptions exist in North Carolina’s Sex Offender Registry Program either to exclude an otherwise registerable offender from the program, or to include an otherwise non-registerable offender in the program.

We hope you find this opinion responsive to your inquiry.

Very truly yours,

James J. Coman Senior Deputy Attorney General Law Enforcement & Prosecutions Division

John J. Aldridge, III Special Deputy Attorney General Law Enforcement Liaison Section JJCIII/kj

cc: Senator Frank Ballance