HOUSE BILL 38

51st legislature - STATE OF NEW MEXICO - first session, 2013

INTRODUCED BY

Alonzo Baldonado

AN ACT

RELATING TO CRIMINAL SEXUAL PENETRATION; REMOVING CUSTODY, VISITATION AND INHERITANCE RIGHTS FROM A PERSON CONVICTED OF CRIMINAL SEXUAL PENETRATION WHEN THE CRIMINAL SEXUAL PENETRATION RESULTED IN THE CONCEPTION 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 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) on an inmate confined in a correctional facility or jail when the perpetrator is in a position of authority over the inmate;

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

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

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

                (6) 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. 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.

          H. Upon conviction, a person convicted of criminal sexual penetration as defined in this section has no rights to custody of, visitation with or rights of inheritance from any child born as a result of the commission of the criminal sexual penetration. A conviction for rape or criminal sexual penetration or like offense in a jurisdiction, territory or possession of the United States or of a tribe, when that law is equivalent to New Mexico law for criminal sexual penetration, shall be deemed to be a conviction pursuant to this section for purposes of custody, visitation or inheritance.

          I. If criminal charges alleging an act of criminal sexual penetration are brought against the putative parent of a child conceived as the result of that act of criminal sexual penetration, the court shall issue an automatic stay of any paternity proceeding involving both the child and the alleged putative parent. The stay shall not be lifted until there is a final disposition of such criminal charges."

     SECTION 2. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2013.

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