Does a federal conviction for sexual abuse of a ward under 18 U.S.C. § 2243(b), where the defendant was a drug treatment specialist at a federal prison and had a sexual relationship with an inmate enrolled in her program, require registration under North Carolina's sex offender registry?

Plain-English summary

Sheriff Johnny Williams of Warren County asked the AG whether a particular individual had to register as a sex offender. The individual was a Drug Treatment Specialist at the Federal Correctional Institution in Butner who had sexual intercourse with an inmate enrolled in the prison's Drug Abuse and Treatment Program. She pleaded guilty in January 2002 to one count of sexual abuse of a ward under 18 U.S.C. § 2243(b) in exchange for a probationary sentence. The federal sentencing court imposed a special condition that she register with NC as a sex offender. She and State Senator Frank Ballance asked the AG to reconsider an earlier April 2002 advisory letter that had said she must register.

Senior Deputy AG James Coman (Law Enforcement & Prosecutions Division) and Special Deputy AG John Aldridge III re-evaluated the question and reached the same conclusion: registration is mandatory.

The substantial-similarity analysis. N.C.G.S. § 14-208.6(4)c. makes federal convictions reportable when they are "substantially similar" to NC sexually violent offenses listed in § 14-208.6(5). One of the listed NC offenses is § 14-27.7, which criminalizes sexual intercourse or a sexual act between a person who has custody (or who is an agent or employee of a custodial institution) and a victim in custody. Consent is not a defense.

The federal offense, 18 U.S.C. § 2243(b), criminalizes a knowing sexual act with a person in official detention who is under the defendant's custodial, supervisory, or disciplinary authority. The federal definition of "sexual act" in § 2246(2) includes intercourse.

The two offenses target the same conduct: someone in a position of authority over a person in custody having a sexual act with that person. The AG concluded they are substantially similar.

The April 3, 1997 effective date. Session Laws 1997-15 applies the federal-conviction registration requirement to all persons convicted in federal court on or after April 3, 1997, and to all persons released from a penal institution on or after that date. The defendant was convicted in January 2002, so she falls within the rule.

No discretion to waive. The AG emphasized the mandatory "shall" and "all" language in § 14-208.7(a), § 14-208.6A, § 14-208.12A, and § 14-208.6C. Once an offender meets the conviction and timing criteria, registration is required. The registration ends only if the conviction is reversed, vacated, or set aside, or if the registrant gets an unconditional pardon of innocence. The AG cited Spruill, Perkins, and State v. Fly for the canon of giving "shall" its compulsory meaning when the statute is clear.

The bottom line: the defendant had to register with the Warren County Sheriff for ten years, and neither the Sheriff nor any other authority could waive that obligation absent reversal, vacatur, or unconditional pardon.

Currency note

This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. NC's sex offender registry has been significantly amended since 2002. The federal Sex Offender Registration and Notification Act (SORNA, 2006) established a parallel federal classification framework with three tiers, and the substantial-similarity analysis between federal and state offenses has been judicially refined (the U.S. Supreme Court's Nichols and Carr decisions are part of this). Also, § 14-27.7 was renumbered to § 14-27.31 in the 2015 NC criminal code reorganization. Anyone analyzing a current registration question based on a federal conviction should consult the current statutes, SORNA's classification rules, and current case law on substantial similarity.

Background and statutory framework

NC's sex offender registry. Established in the mid-1990s, Article 27A of Chapter 14 created a public registry of convicted sex offenders required to register with the sheriff of the county where they reside. § 14-208.7(a) is the registration-required provision. § 14-208.6A sets the ten-year minimum registration period. § 14-208.12A provides automatic termination after ten years if no further reportable conviction. § 14-208.6C (effective October 1, 2001) clarified that the period can only be cut short by reversal, vacatur, or unconditional pardon.

Federal convictions and substantial similarity. § 14-208.6(4)c. makes federal convictions reportable if the federal offense is substantially similar to a NC sexually violent offense. This is a comparison of statutory elements, not a comparison of facts. The AG had to identify both the elements of 18 U.S.C. § 2243(b) and the elements of § 14-27.7(a) and find that they target substantially the same conduct.

The custodial-sexual-offense statute. § 14-27.7(a) addresses the abuse-of-power scenario where someone with custody (or an agent or employee of a custodial institution) has a sexual act with a person in custody. Consent is not a defense because the power imbalance is treated as inherently coercive. The federal § 2243(b) statute reflects the same legislative concern in the federal corrections context.

Why mandatory matters. The AG's interpretation closes off arguments that the Sheriff or some other actor might waive the registration in particular cases. The legislature chose universal coverage on purpose: the registry's deterrent and notification functions depend on consistency. The statutes' "shall" and "all" language is doctrinally compelling under Spruill and Perkins.

Sentencing court conditions. The federal sentencing court added the NC registration as a special condition of supervision, but the AG noted that the underlying NC statute would require registration regardless of what the federal court said. The federal court's order is consistent with the NC statute, not the source of the obligation.

Common questions

Q: Could the defendant petition the NC court for relief from registration?

A: Under the law as it stood in 2002, only via reversal, vacatur, or unconditional pardon of innocence. The AG specifically pointed to § 14-208.6C, which limits termination grounds. Subsequent NC statutory amendments have created some petition mechanisms, but those did not exist when this opinion was issued.

Q: What if the federal offense did not exactly match the NC offense, only roughly?

A: The standard is "substantially similar," not identical. The AG read § 14-208.6(4)c. as comparing the essence of the offense (custodial sexual conduct) rather than every element. A federal offense that captures the same harmful conduct in slightly different statutory language would still trigger registration.

Q: Does the conviction date or the release date control the 1997 effective date trigger?

A: Either can. Session Laws 1997-15 applies to all persons convicted on or after April 3, 1997, AND all persons released from a penal institution on or after that date. The defendant here was convicted in 2002, well after 1997.

Q: Did the defendant's plea agreement waive sex offender registration?

A: No. The federal court actually imposed registration as a special condition. Even if it had not, the NC statute would have required it. Plea agreements between a defendant and federal prosecutors cannot waive obligations arising under state registry statutes; the state is not a party to the federal plea.

Citations

Statutes:
- N.C.G.S. § 14-208.6 (definitions)
- N.C.G.S. § 14-208.6(4)c. (reportable conviction; substantially similar federal offenses)
- N.C.G.S. § 14-208.6(5) (sexually violent offense definition)
- N.C.G.S. § 14-208.6A (ten-year registration period)
- N.C.G.S. § 14-208.6C (termination grounds)
- N.C.G.S. § 14-208.7(a) (registration requirement)
- N.C.G.S. § 14-208.12A (automatic termination after ten years)
- N.C.G.S. § 14-27.7(a) (Class E felony; sexual intercourse or act with custodial victim, no consent defense)
- 18 U.S.C. § 2243(b) (sexual abuse of a ward)
- 18 U.S.C. § 2246(2) (definition of sexual act)
- Session Laws 1997-15 (effective date for federal-conviction-based registration)

Cases:
- Spruill v. Lake Phelps Vol. Fire Dept., Inc., 351 N.C. 318, 523 S.E.2d 672 (2000) (plain language of statute controls)
- Perkins v. Arkansas Trucking Service, Inc., 351 N.C. 634, 528 S.E.2d 902 (2000) (common and ordinary meaning of statutory words)
- State v. Fly, 127 N.C. App. 286, 488 S.E.2d 614 (1997) (dictionaries may aid statutory construction)

Source

• Landing page: https://ncdoj.gov/opinions/sex-offender-registration-predicated-on-a-federal-conviction/

Original opinion text

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

cc: Senator Frank Ballance