HOUSE BILL 109

56th legislature - STATE OF NEW MEXICO - second session, 2024

INTRODUCED BY

Stefani Lord and Harlan Vincent and John Block

 

 

 

 

AN ACT

RELATING TO CRIME; PROVIDING THAT AGGRAVATED CRIMINAL SEXUAL PENETRATION AND CRIMINAL SEXUAL PENETRATION OF A CHILD SHALL BE PUNISHED BY DEATH; PROVIDING EXCEPTIONS; CREATING A FIRST DEGREE FELONY FOR HUMAN SEXUAL TRAFFICKING AGAINST A VICTIM UNDER EIGHTEEN YEARS OF AGE PUNISHABLE BY DEATH; ESTABLISHING A FINE FOR FIRST DEGREE FELONY CRIMINAL SEXUAL PENETRATION OF A CHILD.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. Section 30-9-11 NMSA 1978 (being Laws 1975, Chapter 109, Section 2, as amended) is amended to read:

     "30-9-11. CRIMINAL SEXUAL PENETRATION.--

          A. Criminal sexual penetration is the unlawful and intentional causing of a person to engage in sexual intercourse, cunnilingus, fellatio or anal intercourse or the causing of penetration, to any extent and with any object, of the genital or anal openings of another, whether or not there is any emission.

          B. Criminal sexual penetration does not include medically indicated procedures.

          C. Aggravated criminal sexual penetration consists of all criminal sexual penetration perpetrated on a child under thirteen years of age with an intent to kill or with a depraved mind regardless of human life. Whoever commits aggravated criminal sexual penetration is guilty of a first degree felony for aggravated criminal sexual penetration.

          D. Criminal sexual penetration in the first degree consists of all criminal sexual penetration perpetrated

                [(1) on a child under thirteen years of age; or

                (2)] by the use of force or coercion that results in great bodily harm or great mental anguish to the victim.

     Whoever commits criminal sexual penetration in the first degree is guilty of a first degree felony.

          E. Criminal sexual penetration of a child in the first degree consists of all criminal sexual penetration perpetrated on a child under eighteen years of age.

     Whoever commits criminal sexual penetration of a child in the first degree is guilty of a first degree felony for criminal sexual penetration of a child; provided that whoever commits criminal sexual penetration of a child when the child is thirteen to sixteen years of age and the perpetrator is at least eighteen years of age and is at least four years older than the child and not the spouse of that child is guilty of a fourth degree felony; and provided further that whoever commits criminal sexual penetration of a child when the perpetrator is a licensed school employee, an unlicensed school employee, a school contract employee, a school health service provider or a school volunteer, and is at least eighteen years of age and is at least four years older than the child and not the spouse of that child, is guilty of a first degree felony for criminal sexual penetration of a child.

          [E.] F. Criminal sexual penetration in the second degree consists of all criminal sexual penetration perpetrated:

                [(1) by the use of force or coercion on a child thirteen to eighteen years of age;

                (2)] (1) on an inmate confined in a correctional facility or jail when the perpetrator is in a position of authority over the inmate;

                [(3)] (2) by the use of force or coercion that results in personal injury to the victim;

                [(4)] (3) by the use of force or coercion when the perpetrator is aided or abetted by one or more persons;

                [(5)] (4) in the commission of any other felony; or

                [(6)] (5) when the perpetrator is armed with a deadly weapon.

     Whoever commits criminal sexual penetration in the second degree is guilty of a second degree felony. [Whoever commits criminal sexual penetration in the second degree when the victim is a child who is thirteen to eighteen years of age is guilty of a second degree felony for a sexual offense against a child and, notwithstanding the provisions of Section 31-18-15 NMSA 1978, shall be sentenced to a minimum term of imprisonment of three years, which shall not be suspended or deferred. The imposition of a minimum, mandatory term of imprisonment pursuant to the provisions of this subsection shall not be interpreted to preclude the imposition of sentencing enhancements pursuant to the provisions of the Criminal Sentencing Act.

          F.] G. Criminal sexual penetration in the third degree consists of all criminal sexual penetration perpetrated through the use of force or coercion not otherwise specified in this section.

     Whoever commits criminal sexual penetration in the third degree is guilty of a third degree felony.

          [G. Criminal sexual penetration in the fourth degree consists of all criminal sexual penetration:

                (1) not defined in Subsections D through F of this section perpetrated on a child thirteen to sixteen years of age when the perpetrator is at least eighteen years of age and is at least four years older than the child and not the spouse of that child; or

                (2) perpetrated on a child thirteen to eighteen years of age when the perpetrator, who is a licensed school employee, an unlicensed school employee, a school contract employee, a school health service provider or a school volunteer, and who is at least eighteen years of age and is at least four years older than the child and not the spouse of that child, learns while performing services in or for a school that the child is a student in a school.

     Whoever commits criminal sexual penetration in the fourth degree is guilty of a fourth degree felony.]"

     SECTION 2. Section 30-52-1 NMSA 1978 (being Laws 2008, Chapter 17, Section 1) is amended to read:

     "30-52-1. HUMAN TRAFFICKING.--

          A. Human trafficking consists of a person knowingly:

                (1) recruiting, soliciting, enticing, transporting or obtaining by any means another person with the intent or knowledge that force, fraud or coercion will be used to subject the person to labor, services or commercial sexual activity;

                (2) recruiting, soliciting, enticing, transporting or obtaining by any means a person under the age of eighteen years with the intent or knowledge that the person will be caused to engage in commercial sexual activity; or

                (3) benefiting, financially or by receiving anything of value, from the labor, services or commercial sexual activity of another person with the knowledge that force, fraud or coercion was used to obtain the labor, services or commercial sexual activity.

          B. The attorney general and the district attorney in the county of jurisdiction have concurrent jurisdiction to enforce the provisions of this section.

          C. Except as provided in Subsection D of this section, whoever commits human trafficking is guilty of a third degree felony; except if the victim is under the age of:

                (1) sixteen, the person is guilty of a second degree felony; or

                (2) thirteen, the person is guilty of a first degree felony.

          D. Whoever commits human trafficking if the conduct is commercial sexual activity and the victim is under the age of eighteen is guilty of a first degree felony for human sexual trafficking against a victim under the age of eighteen.

          [D.] E. Prosecution pursuant to this section shall not prevent prosecution pursuant to any other provision of the law when the conduct also constitutes a violation of that other provision.

          [E.] F. In a prosecution pursuant to this section, a human trafficking victim shall not be charged with accessory to the crime of human trafficking.

          [F.] G. A person convicted of human trafficking shall, in addition to any other punishment, be ordered to make restitution to the victim for the gross income or value of the victim's labor or services and any other actual damages in accordance with Section 31-17-1 NMSA 1978.

          [G.] H. As used in this section:

                (1) "coercion" means:

                     (a) causing or threatening to cause harm to any person;

                     (b) using or threatening to use physical force against any person;

                     (c) abusing or threatening to abuse the law or legal process;

                     (d) threatening to report the immigration status of any person to governmental authorities; or

                     (e) knowingly destroying, concealing, removing, confiscating or retaining any actual or purported government document of any person; and

                (2) "commercial sexual activity" means any sexual act or sexually explicit exhibition for which anything of value is given, promised to or received by any person."

     SECTION 3. Section 31-18-15 NMSA 1978 (being Laws 1977, Chapter 216, Section 4, as amended) is amended to read:

     "31-18-15. SENTENCING AUTHORITY--CAPITAL FELONIES--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] death

first degree felony             eighteen years imprisonment

first degree felony for

criminal sexual penetration

of a child                      death

first degree felony for

human sexual trafficking

against a victim under

eighteen years of age           death

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 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.<