Which crimes are covered under the new victims’ rights amendment and its implementing statute?

In a series of recent posts (here, here, and here), Shea has written about the 2018 victims’ rights amendment and the legislation passed to implement it. Today’s post takes a closer look at the threshold question of which crimes are covered under the law.

Under prior law, the crimes covered under the Crime Victims’ Rights Act (CVRA) were listed in G.S. 15A-830(7). They included all Class A through Class E felonies, a list of enumerated felonies, certain misdemeanors when committed between persons who have a personal relationship, and certain protective order violations. I used to include the full list, available here, in the sentencing handbook and other publications.

The new law, S.L. 2019-216, takes a different approach. For those of you who—unlike my high school math teachers—don’t need me to show my work, I’ll cut to the chase. Here’s a list of all the crimes I think are covered under the new law.

For those of you who care to see how I got there, read on.

For offenses committed on or after August 31, 2019, “victim” for CVRA purposes is defined as an “offense against the person or a felony property crime.” G.S. 15A-830(7). I’ll consider each prong in detail, starting with the property crimes because they are more straightforward.

“Felony property crime” is defined in new G.S. 15A-830(3b). It includes felonies in:

• Subchapter IV of Chapter 14 (G.S. 14-51 through 14-69.3);
• Subchapter V of Chapter 14 (G.S. 14-70 through 14-125).

That’s easy enough. Every felony in those subchapters is included the new table of CVRA offenses linked above. No misdemeanors in those statutory ranges are included. Nor are attempts or other inchoate version of those crimes, as nothing in the statute loops them in. Finally, there is no catch-all to capture the felony property crimes scattered around other parts of the General Statutes, such as defacing a church and causing damage of more than $5,000. That’s a felony under G.S. 14-144, but it is not covered because it is in Subchapter VI, not IV or V.

Offenses against the person are more complicated. “Offense against the person” is defined to include an offense involving the person of the victim which constitutes a violation of:

• Subchapter III of Chapter 14 (G.S. 14-17 through 14-50.43);
• Subchapter VII of Chapter 14 (G.S. 14-177 through 14-208.45);
• Article 39 of Chapter 14 (G.S. 14-313 through 14-321.2);
• Chapter 20, if an element of the offense involves impairment of the defendant, or injury or death to the victim;
• A valid protective order under G.S. 50B-4.1, including, but not limited to, G.S. 14-134.3 and G.S. 14-269.8;
• Article 35 of Chapter 14 (G.S. 14-269 through 14-277.8), if the elements of the offense involve communicating a threat or stalking; or
• An offense that triggers the enumerated victims’ rights, as required by the North Carolina Constitution.

There are two main issues that make the offense against the person prong more complicated than the felony property crime prong.

First, unlike the property crimes prong, the offenses against the person prong does not necessarily rope in every crime (or even every felony crime) in the enumerated statutory ranges. Instead, the law says that it includes offenses “involving the person” in those ranges. So, in my opinion, you have to look at the crimes in the enumerated ranges and decide whether they “involve the person” of the victim.

Unfortunately, the law doesn’t define what it means for an offense to involve the person of the victim. Looking at the enumerated ranges, I think it surely means more than just assaults. But it’s still not clear to me that it includes every crime in those ranges. For example, failure to register as a sex offender under G.S. 14-208.11 falls within Subchapter VII of Chapter 14, but it doesn’t “involve the person” of any particular victim. As such, I would say it is not covered. A closer call might be a crime like prostitution under G.S. 14-204(a). It also falls in Subchapter VII, but who is the victim? Or what about keeping a disorderly or bawdy house under G.S. 14-188? Is that against the person?

As I understand it, the Administrative Office of the Courts erred on the side of caution and flagged every crime in the enumerated ranges as covered under the CVRA. My list excludes crimes that, in my opinion, clearly never involve the person of any particular victim. Law enforcement agencies and other entities with legal responsibilities under the CVRA may wish to consult with legal counsel to determine which crimes they will view as triggering their obligations under the law.

The Chapter 20 portion of the offense against the person prong includes only those offenses that include an element involving impairment of the defendant or injury or death to the victim. The Article 35 portion is similarly limited to crimes that include an element involving communicating a threat or stalking. The linked list includes only those crimes.

The second issue is that, unlike the property crimes prong, the offense against the person prong includes a catch-all provision. It covers any offense involving the person of the victim that entitles a victim to the rights enumerated in the constitution—which is to say, any offense against or involving the person of the victim. Art. I, sec. 37(1a). If that sounds circular, it’s because it is. I guess the provision must have been intended to capture offenses against a person that are not otherwise included in the enumerated ranges. But it’s not clear why you need to enumerate any specific ranges at all if you’re going to also include a catch-all provision that would have covered everything in those ranges . . . and more.

Nevertheless, assuming the provision was meant to apply to offenses falling outside the enumerated ranges, I reviewed those statutes and added to the list those that, broadly speaking, involve the person of the victim. For example, one crime I felt clearly fell within the constitutional catch-all was G.S. 14-16.6(c), assault on an executive, legislative, or court officer inflicting serious bodily injury. It falls outside all the enumerated ranges but, obviously involves an offense against the person of the victim. Slightly less clear was something like intimidating a witness under G.S. 14-226, but I erred on the side of including it in the list. Again, law enforcement agencies and others may wish to consult with legal counsel on the scope of the catch-all provision.

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