Criminal Abuse and Exploitation in North Carolina

Burt’s Law increases punishments for Criminal Abuse and Exploitation in North Carolina.

Chapter 122C of the North Carolina General Statues is entitled the, “Mental Health, Developmental Disabilities, and Substance Abuse Act of 1985” and sets forth:

The policy of the State is to assist individuals with needs for mental health, developmental disabilities, and substance abuse services in ways consistent with the dignity, rights, and responsibilities of all North Carolina citizens.

Powers and Duties of the Commission

The Commission for Mental Health, Developmental Disabilities, and Substance Abuse Services exercises certain powers and duties under N.C.G.S. 122C-26, including:

Burt’s Law Amendments

Burt’s Law sets forth conduct by both employees and volunteers of facilities and has been amended as follows:

“§ 122C-66. Protection from abuse and exploitation; reporting.

(a) An employee of or a volunteer at a facility who, other than as a part of generally accepted medical or therapeutic procedure, knowingly causes pain or injury to a client is guilty of a Class A1 misdemeanor. Any employee or volunteer who uses reasonable force to carry out the provisions of G.S. 122C-60 or to protect himself or others from a violent client does not violate this subsection.
(a1) An employee of or a volunteer at a facility who borrows or takes personal property from a client is guilty of a Class 1 misdemeanor. Any employee or volunteer who uses reasonable force to carry out the provisions of G.S. 122C-60 or to protect himself or others from a violent client does not violate this subsection.
(b) An employee of or a volunteer at a facility who witnesses or has knowledge of a violation of subsection (a), subsection (a1), or of an accidental injury to a client shall report the violation or accidental injury to authorized personnel designated by the facility. No employee making a report may be threatened or harassed by any other employee or volunteer on account of the report. Violation of this subsection is a Class 1 misdemeanor.
(b1) The employee of or a volunteer at a facility who witnesses a client become a victim of a violation of Article 7A or Article 26 of Chapter 14 of the General Statutes shall report the allegations within 24 hours after witnessing the violation to one of the following: (i) the department of social services in the county where the facility serves the client; (ii) the district attorney in the district where the facility serves the client; or (iii) the appropriate local law enforcement agency in the city or county where the facility serves the client. A violation of this section is a Class A1 misdemeanor. No employee making a report may be threatened or harassed by any other employee or volunteer on account of the report.
(c) The identity of an individual who makes a report under this section or who cooperates in an ensuing investigation may not be disclosed without the reporting individual’s consent, except to persons authorized by the facility or by State or federal law to investigate or prosecute these incidents, or in a grievance or personnel hearing or civil or criminal action in which the reporting individual is testifying, or when disclosure is legally compelled or authorized by judicial discovery. This subsection shall not be interpreted to require the disclosure of the identity of an individual where it is otherwise prohibited by law.
(d) An employee who makes a report in good faith under this section is immune from any civil liability that might otherwise occur for the report. In any case involving liability, making of a report under this section is prima facie evidence that the maker acted in good faith.
(e) The duty imposed by this section is in addition to any duty imposed by G.S. 7B-301 or G.S. 108A-102.
(f) Except for reports made pursuant to subsection (b1) of this section, the facility shall investigate or provide for the investigation of all reports made under the provisions of this section.
(g) The county department of social services and the district attorney to whom a report is made under subsection (b1) of this section shall investigate or provide for the investigation of each such report.”

Modifications, Clarifications and Enhanced Punishments

Enhances punishment from Class 1 Misdemeanor to A1 Misdemeanor for “knowingly causes pain or injury to a client” – except for “accepted medical or therapeutic procedures.”
Adds Subsection (a1) for “employee of or a volunteer at a facility” whom “borrows or takes personal property from a client” – Class 1 Misdemeanor
Clarifies activity: Any employee or volunteer who uses reasonable force to. . .enforce 122C-60 or to protect himself or others from a violent client” is not guilty of violating Subsection (a1)
Enhances punishment from Class 3 Misdemeanor to Class 1 Misdemeanor for Failure to Report by witnesses or persons whom have “knowledge of a violation. . .”
Requires Reporting within 24 Hours of Witnessing a Violation to the Department of Social Services or District Attorney or Local Law Enforcement
Adds Class A1 Misdemeanor for failing to comply with 24 Hour Reporting Requirement
Adds language, “No employee making a report may be threatened or harassed by any other employee or volunteer on account of the report.”
Missing Language – Does not appear to specifically include “volunteers” in being threatened or harassed for making a report.
Clarifies protection of Identity of Individual making report or whom cooperates from “his” to “the reporting individual.”
Section 2 of this act becomes effective December 1, 2015, and applies to offenses committed on or after that date.
The remainder of this act is effective when it becomes law – May 18, 2015.

North Carolina Sentencing Grid for Misdemeanors

The amount of the fine for a Class 1 misdemeanor and a Class A1 misdemeanor is in the discretion of the court
any sentence within the duration specified is permitted
Class A1 Misdemeanor for a Prior Record Level 3 is 150 days of incarceration

Transcript of Governor McCrory’s Signing Ceremony of Burt’s Law for the Hearing Impaired:

Speaker 1 – Governor McCrory: Let me first welcome all the legislators here, and we got Senator Buck Newton, Senator

Shirley Randleman. We’ve got Senator Joyce Krawiec, Senator Andy Wells,

Representative Mike Hager, Representative Robert Reives, and my good friend,

Lieutenant Governor Dan Forest here. Have I missed anybody?

The people that are really here that are most important is the Powell Family. Because

this bill is about Burt Powell. He is a developmentally disabled and was a patient at

Conover group home. He described to his mother, actual sexual abuse that he suffered

at the hands of a elderly male staffer had occurred during a years time. The offender

forced Burt and number of residence to sexually interact while he watched. We’re being

real direct here, we’re not beating around the bush, this needs to be done. To ensure

their silence, the suspect threatened to harm the victims’ families. Group home workers

knew about the abuse but did not report it because their jobs were threatened. The

offender was in his late sixties and had worked with handicapped people his whole

career. God knows how much this has occurred at the past. Days before Burt was

scheduled to tell a story to the police, the suspect and offender died from a heart

attack.

Since he was no longer alive, Burt’s parents, Laurie and Tom Powell pursued this law to

protect others by requiring staffers and volunteers to report any abuse they witnessed

within twenty four hours. There is no excuse for staying silent if you see abuse or the

law being broken. As outlined in my state of the state speech, one of the major points I

made is that we must do everything we can to protect those who can not protect

themselves or help themselves, while encouraging those who can. This is a prime

example of trying to help those who can not protect themselves, and Burt sadly could

not protect himself because the system would not allow to happen. The system was

compromised.

I’d like to first thank Burt for his incredible courage for letting this story be known.

Again, I’ll briefly explain this law is that the thrust of this law requires a person – be they

staff member or volunteer – who witnessed a group home resident being sexually

assaulted to report the offense to the local department, social services, law

enforcement and the district attorney. Failing to do so within twenty four hours with the

a class A1 misdemeanor.

Burt’s Law also increases the penalty for those who are intentionally injure special needs

adults who are at the facility. I’ll tell you I’ve had a mom and a grandmother in a nursing

home facility, and you put your trust in these people. My mom sadly had Alzheimer’s for

almost twelve years, and so much of the time we could not be there but I knew my total

trust was in the people taking care of my mom doing tasks that no onw of could

imagine. It’s a very tough job working in a nursing home. But if anyone within this

homes betray the trust, everyone suffers including the patient, and including other

workers who are trying to do good job because we all know the majority of workers in

these homes are doing great jobs. We’re all going to have trust someone some time in

our life, and if any of us sees that trust being betrayed it’s our responsibility to report it.

I don’t think we should wait twenty-four hours, we should do it within minutes.

Burt, again, he just gave me the best hug that I’ve ever had in my life coming in here.

You’re a loving guy, and you’re a ethical guy, you’re a person with tremendous courage,

and you’re a hero. You’re a hero because you’re going to prevent this from happening to

other people. I also want to thank the Mayor of Conover, Lee Moritz is here. Lee, thank

you very much. You know I have special affection for mayors, and you live in a very

special town and I notice nursing home was in your time, and this is close to home. You

care for your home and mayor I appreciate you being here, also. I also want to really

thank this legislators, especially Lieutenant Governor Dan Forest who really gave this a

lot of focus and attention, along with all these representatives and senators behind me.

This hits close to heart because it’s going to impact someone in our family. With that,

I’m very, very honored to sign this bill, and I’m proud to sign this bill. This a good for

North Carolina safety, right here.

Burt, I want to give you the first pin – if you come here, Burt. Here buddy, here’s your

pin. I said that in the hallway, wouldn’t let go of me in the hallway and finally said, “Can I

hug your mom, now?” Okay. To the parents, I just want to say thank you to Tom and

Laurie, you’re courageous for letting us tell the story because I know it’s not easy for you

to h- I could not imagine being a parent and having to hear the story about your own

child, but to do that you’re protecting other people, so thank you very much. God bless

you, thank you very much.

Lieutenant Governor Dan Forest, where are you? Thank you for your leadership, you

deserve a hug too, I don’t want you to get none.

Speaker 2 – Lieutenant Governor Dan Forest: I did get one.

Speaker 1 – Governor McCrory: You’re doing a great job, I’m honored to have to be Lieutenant Governor of this great

state, and let me just pass down the line and everyone else here. Y’all have been

working hard lately [inaudible 00:07:38].

Thank you. I better have enough pins. Who else gets a pin here?

Speaker 3: My daughter and grandson?

Speaker 1: Oh, absolutely. Thank you, God bless you. Thank you for doing this [inaudible 00:07:59]

Thank you very much, God bless you. I appreciate your leadership. We might need a few

more pins here, I’m sure. Great leadership, as always. Who else hasn’t gotten a pin?

Steven Walker? Steven, we appreciate it very much. Y’all give these people a round of

applause. I’d like to thank the community of Conover, and the people in that entire

region who really made a difference and push the legislators to make this happen to.

This was a family effort, a team effort and –

Speaker 3: Grassroots.

Speaker 1 – Governor McCrory: Grassroots, these came from the grassroots, and we have Lieutenant Governor, and the

senators and house members, and the mayor who listened to the grassroots and then

Governor Pat McCrory Signs Burt’s Law- This is a good day for North Carolina

followed through. I appreciate all of y’all, so let’s celebrate, enjoy the mansion as long as

you want, and glad to have you here.