HOUSE BILL 485
56th legislature - STATE OF NEW MEXICO - first session, 2023
INTRODUCED BY
Andrea Reeb and Ambrose Castellano and William "Bill" R. Rehm and Rod Montoya
AN ACT
RELATING TO SEXUAL OFFENSES AGAINST CHILDREN; INCREASING PENALTIES FOR CERTAIN SEXUAL OFFENSES; LIMITING THE DEFENSE FOR CRIMINAL SEXUAL COMMUNICATION WITH A CHILD; AMENDING THE DEFINITION OF "SEX OFFENDER".
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 30-6A-2 NMSA 1978 (being Laws 1984, Chapter 92, Section 2, as amended) is amended to read:
"30-6A-2. DEFINITIONS.--As used in the Sexual Exploitation of Children Act:
A. "prohibited sexual act" means:
(1) sexual intercourse, including genital-genital, oral-genital, anal-genital or oral-anal, whether between persons of the same or opposite sex;
(2) bestiality;
(3) masturbation;
(4) sadomasochistic abuse for the purpose of sexual stimulation; or
(5) lewd and sexually explicit exhibition with a focus on the genitals or pubic area of any person for the purpose of sexual stimulation;
B. "visual or print medium" means:
(1) any film, photograph, negative, slide, computer diskette, videotape or videodisc or any computer or electronically generated imagery; or
(2) any book, magazine or other form of publication or photographic reproduction containing or incorporating any film, photograph, negative, slide, computer diskette, videotape or videodisc or any computer generated or electronically generated imagery;
C. "performed publicly" means performed in a place that is open to or used by the public;
D. "manufacture" means the production, processing, [copying by any means] printing, packaging or repackaging of any visual or print medium depicting any prohibited sexual act or simulation of such an act if one or more of the participants in that act is a child under eighteen years of age; and
E. "obscene" means any material, when the content if taken as a whole:
(1) appeals to a prurient interest in sex, as determined by the average person applying contemporary community standards;
(2) portrays a prohibited sexual act in a patently offensive way; and
(3) lacks serious literary, artistic, political or scientific value."
SECTION 2. Section 30-6A-3 NMSA 1978 (being Laws 1984, Chapter 92, Section 3, as amended) is amended to read:
"30-6A-3. SEXUAL EXPLOITATION OF CHILDREN.--
A. It is unlawful for a person to intentionally possess any obscene visual or print medium depicting any prohibited sexual act or simulation of such an act if that person knows or has reason to know that the obscene medium depicts any prohibited sexual act or simulation of such act and if that person knows or has reason to know that one or more of the participants in that act is a child under eighteen years of age. A person who violates the provisions of this subsection is guilty of a fourth degree felony for sexual exploitation of children and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978, unless the person intentionally possesses more than twenty-five images, films, photographs, other visual or print medium or any combination thereof, in which event the person is guilty of a third degree felony for a sexual offense against a child and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978. When a separate finding of fact made by a court or jury shows beyond a reasonable doubt that a child depicted in the visual or print medium is a child under the age of thirteen, the basic sentence shall be increased by one year, and the sentence imposed by this subsection shall be the first year served and shall not be suspended or deferred; provided that when the offender is a youthful offender, the sentence imposed by this subsection may be increased by one year.
B. The provisions of Subsection A of this section shall not apply to a depiction possessed by a child under the age of eighteen in which the depicted child is between the ages of fourteen and eighteen and the depicted child knowingly and voluntarily consented to the possession, and:
(1) the depicted child knowingly and voluntarily consented to the creation of the depiction; or
(2) the depicted child knowingly and voluntarily produced the depiction without coercion.
This subsection shall not prohibit prosecution nor create an immunity from prosecution for the possession of depictions that are the result of coercion.
C. It is unlawful for a person to intentionally distribute or copy by any means any obscene visual or print medium depicting any prohibited sexual act or simulation of such an act if that person knows or has reason to know that the obscene medium depicts any prohibited sexual act or simulation of such act and if that person knows or has reason to know that one or more of the participants in that act is a child under eighteen years of age. A person who violates the provisions of this subsection is guilty of a third degree felony for sexual exploitation of children and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978. When a separate finding of fact made by a court or jury shows beyond a reasonable doubt that a child depicted in the visual or print medium is a child under the age of thirteen, the basic sentence shall be increased by two years, and the sentence imposed by this subsection shall be the first two years served and shall not be suspended or deferred; provided that when the offender is a youthful offender, the sentence imposed by this subsection may be increased by two years.
D. It is unlawful for a person to intentionally cause or permit a child under eighteen years of age to engage in any prohibited sexual act or simulation of such an act if that person knows, has reason to know or intends that the act may be recorded in any obscene visual or print medium or performed publicly. A person who violates the provisions of this subsection is guilty of a third degree felony for sexual exploitation of children and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978 unless the child is under the age of thirteen, in which event the person is guilty of a second degree felony for sexual exploitation of children and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978. When a separate finding of fact made by a court or jury shows beyond a reasonable doubt that a child depicted in the visual or print medium is a child under the age of thirteen, the basic sentence shall be increased by two years, and the sentence imposed by this subsection shall be the first two years served and shall not be suspended or deferred; provided that when the offender is a youthful offender, the sentence imposed by this subsection may be increased by two years.
E. It is unlawful for a person to intentionally manufacture any obscene visual or print medium depicting any prohibited sexual act or simulation of such an act if one or more of the participants in that act is a child under eighteen years of age. A person who violates the provisions of this subsection is guilty of a second degree felony for sexual exploitation of children and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.
F. It is unlawful for a person to intentionally manufacture any obscene visual or print medium depicting any prohibited sexual act or simulation of such an act if that person knows or has reason to know that the obscene medium depicts a prohibited sexual act or simulation of such an act and if that person knows or has reason to know that a real child under eighteen years of age, who is not a participant, is depicted as a participant in that act. A person who violates the provisions of this subsection is guilty of a fourth degree felony.
G. It is unlawful for a person to intentionally distribute any obscene visual or print medium depicting any prohibited sexual act or simulation of such an act if that person knows or has reason to know that the obscene medium depicts a prohibited sexual act or simulation of such an act and if that person knows or has reason to know that a real child under eighteen years of age, who is not a participant, is depicted as a participant in that act. A person who violates the provisions of this subsection is guilty of a third degree felony.
H. The penalties provided for in this section shall be in addition to those set out in Section 30-9-11 NMSA 1978."
SECTION 3. Section 30-37-3.3 NMSA 1978 (being Laws 2007, Chapter 67, Section 1) is amended to read:
"30-37-3.3. CRIMINAL SEXUAL COMMUNICATION WITH A CHILD--PENALTY.--
A. Criminal sexual communication with a child consists of a person knowingly and intentionally communicating directly with a specific child under sixteen years of age by sending the child obscene images of the person's intimate parts by means of an electronic communication device when the perpetrator is at least four years older than the child.
B. Whoever commits sexual communication with a child is guilty of a fourth degree felony.
C. In a prosecution for criminal sexual communication with a child, it is not a defense that the intended victim of the defendant was a peace officer posing as a child under sixteen years of age.
[C.] D. As used in this section:
(1) "electronic communication device" means a computer, video recorder, digital camera, fax machine, telephone, pager or any other device that can produce an electronically generated image; and
(2) "intimate parts" means the primary genital area, groin, buttocks, anus or breast."
SECTION 4. Section 31-18-15 NMSA 1978 (being Laws 1977, Chapter 216, Section 4, as amended) is amended to read:
"31-18-15. SENTENCING AUTHORITY--NONCAPITAL FELONIES--BASIC SENTENCES AND FINES--PAROLE AUTHORITY--MERITORIOUS DEDUCTIONS.--
A. As used in a statute that establishes a noncapital felony, the following defined felony classifications and associated basic sentences of imprisonment are as follows:
FELONY CLASSIFICATION BASIC SENTENCE
first degree felony
resulting in the death
of a child life imprisonment
first degree felony for
aggravated criminal sexual
penetration life imprisonment
first degree felony eighteen years imprisonment
second degree felony
resulting in the death of
a human being fifteen years imprisonment
second degree felony for a
sexual offense against a
child fifteen years imprisonment
second degree felony for
sexual exploitation of
children twelve years imprisonment
second degree felony nine years imprisonment
third degree felony resulting
in the death of a human being six years imprisonment
third degree felony for a
sexual offense against a
child [six] eleven years imprisonment
third degree felony for sexual
exploitation of children eleven years imprisonment
third degree felony three years imprisonment
fourth degree felony for
sexual exploitation of
children ten years imprisonment
fourth degree felony eighteen months imprisonment.
B. The appropriate basic sentence of imprisonment shall be imposed upon a person convicted and sentenced pursuant to Subsection A of this section, unless the court alters the sentence pursuant to the provisions of the Criminal Sentencing Act.
C. A period of parole shall be imposed only for felony convictions wherein a person is sentenced to imprisonment of more than one year, unless the parties to a proceeding agree that a period of parole should be imposed. If a period of parole is imposed, the court shall include in the judgment and sentence of each person convicted and sentenced to imprisonment in a corrections facility designated by the corrections department authority for a period of parole to be served in accordance with the provisions of Section 31-21-10 NMSA 1978 after the completion of any actual time of imprisonment and authority to require, as a condition of parole, the payment of the costs of parole services and reimbursement to a law enfo