What is the Sexually Violent Predator Registration Program?

Under § 14-208.20, when a person is charged by indictment or information with the commission of a sexually violent offense, the district attorney shall decide whether to seek classification of the offender as a sexually violent predator if the person is convicted. If the District Attorney decides to seek this classification upon conviction, they must file a pretrial motion informing the defendant of the intent to classify the individual as a Sexually Violent Predator. Once convicted, but before sentencing, the court shall order a presentence investigation by a board of experts selected by the Department of Corrections. The court shall then hold a sentencing hearing and take into account the pre-sentencing report and must make written findings as to whether the defendant is to be classified as a sexually violent predator and the basis for the court’s findings.

A person who is a recidivist, sexually violent predator, or convicted of an aggravated offense shall maintain registration for the person’s life. These individuals must also comply similar terms of the Sex Offender and Public Protection Program and register with the Sheriff in the county they reside with multiple additional burdens placed on maintaining a household residence and their ability to travel.

No matter what your criminal offense, being placed on a Sex Offender Registry is a prison term within itself. Don’t let this happen to you. If you or a loved one is accused of a crime that will result in their name being placed on the Sex Offender Registry-List, it is important that you act soon, even before a charge is brought.

The program covers three categories, only one of which requires a hearing

In North Carolina, G.S. 14-208.6A creates two registration programs, and the Sexually Violent Predator Registration Program is the second. Three categories of person register under it: a recidivist, a person convicted of an aggravated offense, and a person classified by the court as a sexually violent predator.

The first two categories are determined by the record. A “recidivist” under G.S. 14-208.6 is a person with a prior conviction for an offense within the reportable conviction definition. An “aggravated offense” is any criminal offense that includes “engaging in a sexual act involving vaginal, anal, or oral penetration with a victim of any age through the use of force or the threat of serious violence” or such an act “with a victim who is less than 12 years old”. Only the third category — classification as a sexually violent predator — requires the separate procedure in G.S. 14-208.20.

What the statute means by “sexually violent predator”

G.S. 14-208.6 defines a sexually violent predator as “a person who has been convicted of a sexually violent offense and who suffers from a mental abnormality or personality disorder that makes the person likely to engage in sexually violent offenses directed at strangers or at a person with whom a relationship has been established or promoted for the primary purpose of victimization”.

The definition has three parts, and each has to be established. There must be a conviction for a sexually violent offense as enumerated in G.S. 14-208.6(5). There must be a mental abnormality or personality disorder. And that condition must make the person likely to offend against strangers, or against a person groomed for the purpose. It is a clinical and predictive question layered on top of a legal one, which is why the statute builds an evaluation into the process.

The procedure runs from charge through to sentencing

G.S. 14-208.20 sets out a sequence that begins long before the finding is made. When a person is charged with a sexually violent offense, the district attorney decides whether to seek classification of the offender as a sexually violent predator on conviction. If the district attorney decides to seek it, a notice of that intent must be filed within the period allowed for pretrial motions under G.S. 15A-952, and the court may permit a later filing for good cause.

After conviction and before sentencing, the court orders a presentence investigation, which under the section includes a presentence commitment for study in accordance with G.S. 15A-1332(c). The study is carried out by a board of experts selected by the Division of Prisons. The court then holds a sentencing hearing, considers the report, and must make written findings as to whether the defendant is classified as a sexually violent predator and the basis for those findings. The classification is therefore made by a judge, on a record, after an evaluation — not by the sheriff and not automatically on conviction.

Registration is for life and cannot be shortened by petition

G.S. 14-208.23 states plainly that “a person who is a recidivist, who is convicted of an aggravated offense, or who is classified as a sexually violent predator shall maintain registration for the person’s life”. The ten-year petition procedure in G.S. 14-208.12A applies to the 30-year requirement under the other program; it does not reach a lifetime registrant.

That leaves G.S. 14-208.6C as the only route by which the requirement can be discontinued: where “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”. Each of those attacks the conviction rather than the registration, which is why post-conviction proceedings under Article 89 of Chapter 15A carry particular weight for someone in this program.

Verification is every 90 days, not twice a year

The reporting burden under this program is heavier than under the other. G.S. 14-208.24 sets verification of the registry information of a person required to register for life at every 90 days after the person’s initial registration date, using the same procedure as G.S. 14-208.9A, rather than the annual and six-month cycle that applies to the 30-year program.

The rest of the obligations run in parallel with the first program. Changes of address, of academic status, of educational employment status, of name and of online identifiers are all reportable under G.S. 14-208.9, and a wilful failure to meet any of these duties is a Class F felony under G.S. 14-208.11. The residence restriction in G.S. 14-208.16 and the employment restriction in G.S. 14-208.17 apply, as do the presence restrictions in G.S. 14-208.18 for the categories of registrant its subsection (c) identifies.

Whether an offense is “aggravated” is a legal question about elements

For the second category — conviction of an aggravated offense — no hearing under G.S. 14-208.20 takes place, so the question is decided by the sentencing court as a matter of law. North Carolina appellate decisions have held that the inquiry is confined to the elements of the offense of conviction, and that the court may not look to the underlying factual scenario.

The result is that an offense which does not include penetration among its elements cannot be an aggravated offense, even where the facts described at a plea hearing involved penetration, and the same reasoning has been applied to attempted offenses. Because the consequence is lifetime registration rather than 30 years, this is one of the points in a sex offense case where the precise offense of conviction carries more weight than the sentence.

Satellite-based monitoring is a separate question at the same hearing

Classification under this program does not by itself decide satellite-based monitoring, which is governed by Part 5 of Article 27A. Under G.S. 14-208.40A(a) the district attorney presents evidence at sentencing about which category a reportable conviction falls into, and subsection (b) requires the court to make a finding of fact on that question. Where the offender has been classified as a sexually violent predator, is a reoffender, has committed an aggravated offense, or was convicted under G.S. 14-27.23 or G.S. 14-27.28, subsection (c) requires the court to order a risk assessment by the Division of Adult Correction.

What follows is conditional. Under subsection (c1) the court must determine, on the risk assessment and all relevant evidence, whether the offender requires the highest possible level of supervision and monitoring, and only if it so determines does it order enrollment, for a period of 10 years. A separate route in subsections (d) and (e) applies to the physical, mental or sexual abuse of a minor category, where the period is specified by the court. An offender ordered on or after 1 December 2021 to enroll may petition under G.S. 14-208.43, five years after initial enrollment, in the superior court of the county where the conviction occurred. Terminating monitoring has no effect on the lifetime registration requirement under G.S. 14-208.23.

Common questions

Who decides whether someone is a sexually violent predator in North Carolina?

The sentencing judge does, following the procedure in G.S. 14-208.20. The district attorney decides whether to seek the classification and, if so, files a notice of intent within the time allowed for pretrial motions under G.S. 15A-952. After conviction and before sentencing the court orders a presentence investigation including a presentence commitment for study under G.S. 15A-1332(c), then holds a sentencing hearing and makes written findings as to the classification and its basis.

What is the difference between the two North Carolina registration programs?

G.S. 14-208.6A creates both. A person with a reportable conviction registers under the Sex Offender and Public Protection Registration Program for at least 30 years under G.S. 14-208.7(a), with verification twice a year and the possibility of a petition after ten years. A recidivist, a person convicted of an aggravated offense and a person classified as a sexually violent predator register under the Sexually Violent Predator Registration Program for life under G.S. 14-208.23, with verification every 90 days under G.S. 14-208.24.

Can a lifetime registrant in North Carolina ever petition to come off the registry?

The ten-year petition in G.S. 14-208.12A applies to the 30-year requirement and does not reach a person registering for life under G.S. 14-208.23. For a lifetime registrant, G.S. 14-208.6C is the operative provision: registration is discontinued only if the conviction is reversed, vacated or set aside, or if the registrant receives an unconditional pardon of innocence for the offense requiring registration.

What is an aggravated offense in North Carolina?

G.S. 14-208.6 defines it as any criminal offense that includes either engaging in a sexual act involving vaginal, anal or oral penetration with a victim of any age through the use of force or the threat of serious violence, or engaging in such a sexual act with a victim who is less than 12 years old. North Carolina appellate decisions hold that the question is answered by looking at the elements of the offense of conviction rather than at the underlying facts.

Written for North Carolina law and reviewed by David P. Sheehan, attorney, Charlotte. General information, not legal advice — see the disclaimer.