A conviction for the following offenses, or an attempt or conspiracy to commit such an offense, shall be considered a Tier II offense, if it does not qualify as a Tier III offense:
(a) Felonies. Unless otherwise covered by Section
6.03.03, any sex offense that is punishable by more than one year in jail is considered a Tier II offense.
(b) Recidivism. Unless otherwise covered by Section
6.03.03, if an offender has previously been convicted of a sex offense, and the current conviction is for a sex offense, the current conviction is considered a Tier II offense.
(c) Tribal Offenses. Any of the following sex offenses, unless the offense involves one or more of the elements listed in Section
6.03.03(c):
(ii) Section
5.07.08 (Rape of a Child in the Second Degree),
(iii) Section
5.07.09 (Rape of a Child in the Third Degree),
(v) Section
5.07.16 (Possession or Viewing of Child Pornography),
(vi) Section
5.07.20 (Promoting Prostitution in the First Degree).
(d) Offenses Involving Minors. A Tier II offense includes any sex offense against a minor for which a person has been convicted, or an attempt or conspiracy to commit such an offense that involves:
(i) The use of minors in prostitution, including solicitations,
(ii) Enticing a minor to engage in criminal sexual activity,
(iii) A non-forcible Sexual Act with a minor 16 or 17 years old,
(iv) Sexual contact with a minor 13 years of age or older, whether directly or indirectly through the clothing,
(v) The use of a minor in a sexual performance,
(vi) The production or distribution of child pornography,
(vii) Any other offense defined as a Tier II offense under 42 U.S.C. §
16911(3) as it may be amended.
(e) Certain Federal Offenses. The following federal offenses shall be considered Tier II offenses:
(i) 18 U.S.C. §
1591 (sex trafficking of children by force, fraud, or coercion),
(ii) 18 U.S.C. §
2244 (Abusive sexual contact, where the victim is 13 years of age or older),
(iii) 18 U.S.C. §
2251 (sexual exploitation of children),
(iv) 18 U.S.C. §
2251A (selling or buying of children),
(v) 18 U.S.C. §
2252 (production or distribution of child pornography),
(vi) 18 U.S.C. §
2252A (production or distribution of material containing child pornography),
(vii) 18 U.S.C. §
2260 (production of sexually explicit depictions of a minor for import into the United States),
(viii) 18 U.S.C. §
2421 (transportation of a minor for illegal sexual activity),
(ix) 18 U.S.C. §
2422(b) (coercion and enticement of a minor to engage in prostitution),
(x) 18 U.S.C. §
2423(a) (transporting a minor to engage in illicit conduct),
(xi) 18 U.S.C. §
2423(d) (ancillary offenses where the victim is under 18),
(xii) Any other offense defined as a Tier II offense under 42 U.S.C. §
16911(3) as it may be amended.
(f) Certain Military Offenses. Any military offense specified by the Secretary of Defense under section 115(a)(8)(C)(i) of Public Law 105-119 (codified at 10 U.S.C. §
951 note) that is similar to those offenses outlined in Section
6.03.02(c),
(d), or
(e) shall be considered a Tier II offense.
(Modifications to Sec. 6.03.02 were enacted by Res. 21-A-021, 3/8/2021, to include a conviction for an attempt or conspiracy to be considered a Tier II offense, if it does not qualify as a Tier III offense. Modification also changed the following crimes from Tier I to Tier II: Rape in the Third Degree; Rape of a Child in the Second Degree; Rape of a Child in the Third Degree; Possession or Viewing of Child Pornography; and, Abusive Sexual Touching.)