Friday, August 29, 2008

Criminal Legislative Update, August 2008

For August 2008, the NC General Assembly made the following changes affecting NC Criminal Code:

Stalking Amended (August 3, 2008): the prior stalking law, G.S. 14-277.3, was repealed and replaced by G.S. 14-277.3A. To be guilty of stalking, a defendant must harass a complainant on multiple occasions in a way that creates a fear of serious harm. The new statute changes the injury necessary to the complainant from actual serious emotional distress to conduct that would cause a reasonable person to suffer serious emotional distress -- changing the analysis from factual inquiry into the actual subjective harm suffered by the complainant to an objective inquiry into whether the defendants acts were the type that is likely to cause serious harm. The act did not increase the penalties for stalking (class A1 misdemeanor, with enhancement to felony status for prior offenses or acts committed while under restraining order). Full text of the enactment available here.

Hate Crimes and Secret Societies Statutes: Stricter Penalties and Clarifications (Aug. 8, 2008): The Assembly amended the Secret Societies Act, an act prohibiting certain secret societies (e.g. Ku Klux Klan), whose primary purpose is the violation of law. The act increases the enhancement for committing class 1 or A1 misdemeanor hate crimes--acts committed based on the complainant's race, color, religion, nationality, or country of origin--from a class H to a class I felony (raising the sentence range for a first time offender from 4-6 months to 5-6 months, but also changing to an "active" sentencing category, making actual jailtime more likely). The act also clarifies that intimidation by hanging a noose (while hooded or not) is included in the felony intimidation crimes, forbidden by the Secret Societies Statutes and broadens the prohibition on burning crosses with intent to intimidate to include all public property (rather than just public highways). (Note, the act also prohibits burning crosses on another's property as a property crime; no proof of intent to intimidate is necessary). Full text of the enactment available here.

New Offenses and Procedures, Harsher Penalties for "Gang-Related Crimes" and other miscelaneous provisions (August 15, 2008): First, the Legislation extends forfeiture penalties for gains related to any crime, rather than only felonies and creates special forfeiture rules for property uses to commit gang-related crimes. The statute does create a defense to forfeiture for innocent third-party owners. Second, the statute creates the following new crimes:
  • Discharging a firearm within a building, car, or other enclosure at person outside the enclosure as part of "a pattern of gang activity" as a class E felony;
  • Engaging in a "pattern of street gang activity", defined as being associated with a criminal street gang and participating in its activity or controlling its real property, as a class H felony for underlings and a class F felony for leaders;
  • Soliciting a minor to participate in a criminal street gang, as a class H felony for minors 16 and older and a class F felony for minors under 16;
  • Threatening another to prevent them from assisting another to withdraw membership from a gang or to threaten another in retaliation for withdrawing, as a class H felony.
Third, the statute enhances punishment for class A1 misdemeanors to class I felonies if committed as part of gang activity. Fourth, the statute creates a presumption of no bonded release pending trial if charged with committing crimes related to gang activity while on pre-trial release and having prior gang-related offenses. Finally, the statute expands the enhancement for crimes committed with a firearm to include crimes committed with any deadly weapon. Full text of the enactment available here.

Protect Children from Sexual Predators Act (August 16, 2008): First, the act expands the definition of "sexual activity with a minor" to include the "lascivious exhibition of the genitals or pubic area of any person." Second, the act creates stricter penalties for the following offenses:
  • First degree sexual exploitation of a minor (live performance or creation of pornography with a minor), from class D to class C felony;
  • Second degree sexual exploitation of a minor (distributing or copying child pornography), from class F to class E felony;
  • Third degree sexual exploitation of a minor (possession of child pornography), from class I to class H felony;
  • Soliciting sexual contact with a minor by computer, creating an enhancement to a class G felony if the solicitor "actually appears at the meeting location.
Third, the statute forbids convicted sex offenders from using social networking websites (e.g. facebook, myspace) or obtaining name changes. Full text of the enactment available here.

Sex Offender Registry Changes (Aug 16, 2008): Adds felony child abuse where parent commits or permits an act of prostitution by a juvenile or commits a sexual act on a juvenile to the list of offenses making one a "sex offender." Also requires sex offenders to disclose their email addresses and other internet handles to the registry. Full text of enactment available here.

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