New laws on Sexual Offenses

Explanation of new laws by the NC School of Government.

www.kisslinglaw.com

In the 2015 case State v. Hicks, __ N.C. App. __, 768 S.E.2d 373 (2015), after holding that the trial court committed plain error in its jury instructions, the N.C. Court of Appeals urged the General Assembly to clarify the relevant law:

This case illustrates a significant ongoing problem with the sexual offense statutes of this State: the various sexual offenses are often confused with one another, leading to defective indictments.

Given the frequency with which these errors arise, we strongly urge the General Assembly to consider reorganizing, renaming, and renumbering the various sexual offenses to make them more easily distinguishable from one another. Currently, there is no uniformity in how the various offenses are referenced, and efforts to distinguish the offenses only lead to more confusion.… We do not foresee an end to this confusion until the General Assembly amends the statutory scheme for sexual offenses. (citations omitted).

Responding to the court’s plea, the General Assembly took action. In S.L. 2015-181 it created a new Article 7B in Chapter 14 entitled “Rape and Other Sex Offenses” and recodified many of state’s sexual assault crimes. Separately, S.L. 2015-62 tweaked the elements of statutory rape and sex offense of a person under fifteen and S.L. 2015-44 increased the punishment for two sexual activity with student offenses and amended the definition of the term “school personnel.” All of the changes become effective December 1, 2015, and apply to offenses committed on or after that date. S.L. 2015-181 sec. 48; S.L. 2015-62 sec 1(d); S.L. 2015-44 sec. 5. The table below summarizes these changes and, come December 1^st hopefully will direct those involved with charging these crimes to the correct statute. Already anticipating mistakes in that regard? As I discuss in this bulletin an error in the statutory citation is not a fatal defect when the charging document otherwise properly alleges the crime committed (see my Criminal Case Compendium for more recent cases on point). As also noted in my bulletin, the statutory citation may be amended when the body of the charging instrument puts the defendant on notice of the crime charged. In any event, it’s always easier to do it right the first time. To that end here is your cheat sheet:

Offense	Old statute	New statute	Substantive changes
First-degree forcible rape	G.S. 14-27.2	G.S. 14-27.21	None
Second-degree forcible rape	G.S. 14-27.3	G.S. 14-27.22	None
Statutory rape by an adult	G.S. 14-27.2A	G.S. 14-27.23	None
First-degree statutory rape	G.S. 14-27.2	G.S. 14-27.24	None
Statutory rape of a person who is 15 or younger	G.S. 14-27.7A	G.S. 14-27.25	1. Adds requirement that defendant be at least 12 years old 2. Statute now applies whenever victim is 15 years old or younger (used to apply to victim who was 13, 14, or 15 years old) 3. For version that applies when a defendant is >4 but <6 years older than the victim, adds the language: “[u]nless the conduct is covered under some other provision of law providing greater punishment”
First-degree forcible sexual offense	G.S. 14-27.4	G.S. 14-27.26	None
Second-degree forcible sexual offense	G.S. 14-27.5	G.S. 14-27.27	None
Statutory sex offense by an adult	G.S. 14-27.4A	G.S. 14-27.28	None
First-degree statutory sexual offense	G.S. 14-27.4	G.S. 14-27.29	None
Statutory sex offense of a person who is 15 or younger	G.S. 14-27.7A	G.S. 14-27.30	1. Adds requirement that defendant be at least 12 years old 2. Statute now applies whenever victim is 15 years old or younger (statute used to apply to victim who was 13, 14, or 15 years old) 3. For version that applies when a defendant is >4 but <6 years older than the victim, adds the language: “[u]nless the conduct is covered under some other provision of law providing greater punishment”
Sexual activity by a substitute parent	G.S. 14-27.7(a)	G.S. 14-27.31(a)	None
Sexual activity by a custodian	G.S. 14-27.7(a)	G.S. 14-27.31(b)	None
Sexual activity with a student	G.S. 14-27.7(b)	G.S. 14-27.32	1. Definition of “school personnel” amended to include those employed by a nonpublic, charter, or regional school. 2. Sexual activity with a student by person <4 years older than the student raised from Class A1 misd. to Class I felony.
Indecent Liberties with a student	G.S. 14-202.4	No change	1. Definition of “school personnel” amended to include those employed by a nonpublic, charter, or regional school. 2. Indecent liberties with a student by person <4 years older than the student raised from Class A1 misd. to class I felony.
Sexual battery	G.S. 14-27.5A	G.S. 14-27.33	None