HOUSE SAFETY AND CIVIL AFFAIRS COMMITTEE SUBSTITUTE FOR
HOUSE BILLS 440 & 251
52nd legislature - STATE OF NEW MEXICO - first session, 2015
AN ACT
RELATING TO CHILD EXPLOITATION; MAKING EACH SEPARATE DEPICTION OF A CHILD CHARGEABLE AS AN INDIVIDUAL CRIMINAL OFFENSE; REVISING DEFINITIONS IN THE SEXUAL EXPLOITATION OF CHILDREN ACT; DECLARING AN EMERGENCY.
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; or
(6) a simulation of any of the acts provided in Paragraphs (1) through (5) of this subsection;
B. "visual or print medium" means:
(1) any single visual depiction of a prohibited sexual act in any film, photograph, negative, slide, computer diskette, videotape, videodisc or any computer or electronically generated, created or stored imagery; or
(2) any single visual depiction of a prohibited sexual act in any book, magazine or other form of publication or photographic reproduction containing or incorporating any film, photograph, negative, slide, computer diskette, videotape, videodisc or any computer generated, created or stored 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] an obscene visual or print medium depicting [any] a prohibited sexual act [or simulation of such an act] if that person knows or has reason to know that the obscene medium depicts [any] a 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.
B. It is unlawful for a person to intentionally distribute [any] an obscene visual or print medium depicting [any] a prohibited sexual act [or simulation of such an act] if that person knows or has reason to know that the obscene medium depicts [any] a 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.
C. It is unlawful for a person to intentionally cause or permit a child under eighteen years of age to engage in [any] a 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] an obscene visual or print medium or performed publicly. A person who violates the provisions of this subsection is guilty of a third degree felony, unless the child is under the age of thirteen, in which event the person is guilty of a second degree felony.
D. It is unlawful for a person to intentionally manufacture [any] an obscene visual or print medium depicting [any] a 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.
E. It is unlawful for a person to intentionally manufacture [any] an obscene visual or print medium depicting [any] a 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.
F. It is unlawful for a person to intentionally distribute [any] an obscene visual or print medium depicting [any] a 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.
G. The penalties provided for in this section shall be in addition to those set out in Section 30-9-11 NMSA 1978.
H. For the purposes of this section, the possession, distribution or manufacture of each separate depiction of a child under eighteen years of age engaged in a prohibited sexual act contained on an item of visual or print medium shall be considered a distinct act and shall be charged as an individual criminal offense pursuant to the relevant subsection of this section."
SECTION 3. EMERGENCY.--It is necessary for the public peace, health and safety that this act take effect immediately.
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