HOUSE BILL 353

53rd legislature - STATE OF NEW MEXICO - first session, 2017

INTRODUCED BY

Sarah Maestas Barnes

AN ACT

RELATING TO SEXUAL OFFENSES; PROVIDING FOR THE ISSUANCE OF PERMANENT NO CONTACT ORDERS TO RESTRAIN A CONVICTED SEX OFFENDER FROM CONTACTING THE OFFENDER'S VICTIM; PROVIDING THAT PROSECUTION FOR SEXUAL OFFENSES AGAINST CHILDREN MAY COMMENCE AT ANY TIME AFTER THE OFFENSE OCCURS.

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

     SECTION 1. [NEW MATERIAL] PERMANENT NO CONTACT ORDER-- SEX OFFENSES.--

          A. When sentencing a defendant convicted of a sex offense, the judge shall determine whether to issue a permanent no contact order. As part of the defendant's sentencing procedures, the judge shall hold a hearing at which:

                (1) the victim shall have a right to be heard regarding whether a permanent no contact order should be issued; and

                (2) if the defendant opposes issuance of a permanent no contact order, the defendant shall show cause why the order should not be issued.

          B. The judge sentencing the defendant for the sex offense shall be the trier of fact for the hearing.

          C. If the judge determines that reasonable grounds exist for the victim to want to or need to prevent any future contact with the defendant, the judge shall issue a permanent no contact order. The judge shall enter written findings of fact and the grounds on which the order is issued. The order shall be incorporated into the judgment imposing the sentence for the defendant's sex offense conviction.

          D. In a permanent no contact order, in addition to granting any other relief that the court deems necessary and appropriate, the court may order the defendant not to:

                (1) visit, follow, harass, assault, abuse or otherwise interfere with the victim, including at the victim's place of employment;

                (2) contact the victim by telephone, in writing or by electronic or any other means; and

                (3) enter or remain present at the victim's residence, school, place of employment or other specified places at times when the victim is present.

          E. A peace officer may arrest without a warrant and take into custody a restrained party whom the peace officer has probable cause to believe has violated a permanent no contact order issued pursuant to this section or entitled to full faith and credit.

          F. A restrained party convicted of violating a permanent no contact order issued pursuant to this section is guilty of a misdemeanor and shall be sentenced in accordance with Section 31-19-1 NMSA 1978. Upon a second or subsequent conviction, a restrained party shall be sentenced to a jail term of not less than seventy-two consecutive hours, which shall not be suspended, deferred or taken under advisement.

          G. The state, at a victim's request, or a defendant may make a motion to rescind a permanent no contact order at any time after the order is issued. If the court determines that the grounds on which the order was issued no longer exist, the court may rescind the order and shall notify the law enforcement agency that served the order that the order has been rescinded.

          H. If a court notifies a law enforcement agency that a permanent no contact order has been entered or rescinded, the law enforcement agency shall enter that information in the national crime information center's order of protection file within seventy-two hours of receipt of the order.  

          I. The remedies provided in this section are in addition to any other civil or criminal remedy available to a victim protected by a permanent no contact order or to the state.

          J. As used in this section:

                (1) "permanent no contact order" means a permanent injunction that prohibits any contact by a defendant with the victim of a sex offense for which the defendant is convicted. The duration of the injunction is the lifetime of the defendant;

                (2) "restrained party" means a defendant against whom a permanent no contact order is issued;

                (3) "sex offense" means any crime for which registration is required under the Sex Offender Registration and Notification Act; and

                (4) "victim" means the person against whom the sex offense was committed.

     SECTION 2. Section 29-15-2 NMSA 1978 (being Laws 1995, Chapter 146, Section 2, as amended) is amended to read:

     "29-15-2. DEFINITIONS.--As used in the Missing Persons Information and Reporting Act:

          A. "Brittany alert" means a notification relating to an endangered person:

                (1) who is a missing person; and

                (2) about whom there is a clear indication that the person has a developmental disability as defined in Subsection A of Section 28-16A-6 NMSA 1978 and that the person's health or safety is at risk;

          B. "child" means a person under the age of eighteen years who is not emancipated;

          C. "clearinghouse" means the missing persons information clearinghouse;

          D. "custodian" means a parent, guardian or other person who exercises legal physical control, care or custody of a child or of an adult with a developmental disability; or a person who performs one or more activities of daily living for an adult;

          E. "endangered person" means a missing person who:

                (1) is in imminent danger of causing harm to the person's self;

                (2) is in imminent danger of causing harm to another;

                (3) is in imminent danger of being harmed by another or who has been harmed by another;

                (4) has been a victim of a crime as provided in the Crimes Against Household Members Act or in Section 30-3A-3 or 30-3A-3.1 NMSA 1978, or their equivalents in any other jurisdiction;

                (5) is or was protected by an order of protection pursuant to the Family Violence Protection Act;

                (6) is or was protected by a permanent no contact order issued pursuant to Section 1 of this 2017 act;

                [(6)] (7) has Alzheimer's disease, dementia or another degenerative brain disorder or a brain injury; or

                [(7)] (8) has a developmental disability as defined in Subsection A of Section 28-16A-6 NMSA 1978 and that person's health or safety is at risk;

          F. "immediate family member" means the spouse, nearest relative or close friend of a person;

          G. "law enforcement agency" means a law enforcement agency of the state, a state agency or a political subdivision of the state;

          H. "lead station" means an AM radio station that has been designated as the "state primary station" by the federal communications commission for the emergency alert system;

          I. "missing person" means a person whose whereabouts are unknown to the person's custodian or immediate family member and the circumstances of whose absence indicate that:

                (1) the person did not leave the care and control of the custodian or immediate family member voluntarily and the taking of the person was not authorized by law; or

                (2) the person voluntarily left the care and control of the custodian without the custodian's consent and without intent to return;

          J. "missing person report" means information that is:

                (1) given to a law enforcement agency on a form used for sending information to the national crime information center; and

                (2) about a person whose whereabouts are unknown to the reporter and who is alleged in the form submitted by the reporter to be missing;

          K. "person" means an individual, regardless of age;

          L. "possible match" means the similarities between unidentified human remains and a missing person that would lead one to believe they are the same person;

          M. "reporter" means the person who reports a missing person;

          N. "silver alert" means a notification relating to an endangered person:

                (1) who is a missing person;

                (2) who is fifty years or older; and

                (3) about whom there is a clear indication that the individual has an irreversible deterioration of intellectual faculties;

          O. "state agency" means an agency of the state, a political subdivision of the state or a public post-secondary educational institution; and

          P. "state registrar" means the employee so designated by the public health division of the department of health pursuant to the Vital Statistics Act."

     SECTION 3. Section 30-1-9.1 NMSA 1978 (being Laws 1987, Chapter 117, Section 1) is amended to read:

     "30-1-9.1. OFFENSES AGAINST CHILDREN--TOLLING OF STATUTE OF LIMITATIONS.--

          A. The applicable time period for commencing prosecution pursuant to Section 30-1-8 NMSA 1978 shall not commence to run for an alleged violation of Section 30-6-1 [30-9-11 or 30-9-13] NMSA 1978 until the victim attains the age of eighteen or the violation is reported to a law enforcement agency, whichever occurs first.

          B. No limitation period shall exist, and prosecution for an alleged violation of Section 30-9-11 NMSA 1978, when the victim is a child, or Section 30-9-13 NMSA 1978 may commence at any time after the occurrence of the alleged violation."

     SECTION 4. Section 30-1-15 NMSA 1978 (being Laws 2002, Chapter 34, Section 1 and Laws 2002, Chapter 35, Section 1, as amended) is amended to read:

     "30-1-15. ALLEGED VICTIMS OF DOMESTIC ABUSE, STALKING OR SEXUAL ASSAULT--FORBEARANCE OF COSTS.--

          A. An alleged victim of an offense specified in Subsection B of this section is not required to bear the cost of:

                (1) the prosecution of a misdemeanor or felony domestic violence offense, including costs associated with filing a criminal charge against an alleged perpetrator of the offense;

                (2) the filing, issuance or service of a warrant;

                (3) the filing, issuance or service of a witness subpoena; or

                (4) the filing, issuance, registration or service of a protection order.

          B. The provisions of Subsection A of this section apply to:

                (1) alleged victims of domestic abuse as defined in Section 40-13-2 NMSA 1978;

                (2) sexual offenses described in Sections

30-9-11 through 30-9-14 and 30-9-14.3 NMSA 1978;

                (3) crimes against household members described in Sections 30-3-12 through 30-3-16 NMSA 1978;

                (4) harassment, stalking and aggravated stalking described in Sections 30-3A-2 through 30-3A-3.1 NMSA 1978; [and]

                (5) the violation of an order of protection that is issued pursuant to the Family Violence Protection Act or entitled to full faith and credit; and

                (6) the violation of a permanent no contact order issued pursuant to Section 1 of this 2017 act."

     SECTION 5. Section 40-13A-2 NMSA 1978 (being Laws 2013, Chapter 47, Section 2) is amended to read:

     "40-13A-2. DEFINITIONS.--As used in the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act:

          A. "foreign protection order" means a protection order issued by a tribunal of another state;

          B. "issuing state" means the state whose tribunal issues a protection order;

          C. "mutual foreign protection order" means a foreign protection order that includes provisions in favor of both the protected individual seeking enforcement of the order and the respondent;

          D. "protected individual" means a person protected by a protection order;

          E. "protection order" means an injunction or other order, issued by a tribunal under the domestic violence, family violence, sex offender or antistalking laws of the issuing state, to prevent a person from engaging in a violent or threatening act against, harassment of, contact or communication with or physical proximity to another person;

          F. "respondent" means the person against whom enforcement of a protection order is sought;

          G. "state" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States. "State" includes an Indian pueblo, tribe, nation or band that has jurisdiction to issue protection orders; and

          H. "tribunal" means a court, agency or other entity authorized by law to issue or modify a protection order."

     SECTION 6. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2017.

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