NOTE: As provided in LFC policy, this report is intended for use by the standing finance committees of the legislature.  The Legislative Finance Committee does not assume responsibility for the accuracy of the information in this report when used in any other situation.

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(Parenthesis ( ) Indicate Expenditure Decreases)

SOURCES OF INFORMATION

Administrative Office of the District Attorneys (AODA)

Administrative Office of the Courts (AOC)

Public Defender (PD)

State Department of Education (SDE)

Children, Youth and Families Department (CYFD)

SUMMARY

Synopsis of Bill

The Criminal Offenses Against Minors bill amends sections of the NMSA to define additional circumstances which would result in a criminal sexual penetration in the second degree and criminal sexual contact in the third degree.

The committee substitute essentially adds a definition of "school" which includes certain hospitals and excludes colleges and universities. Additionally, the school employee must know that the person they commit the act against is a student in the school.

Significant Issues

The age of the victim covered by the law is raised by from sixteen to eighteen years of age. Although current law already enhances the degree of felony when the perpetrator is in a position of authority over the child, it specifically provides for an increased degree for licensed and unlicensed school employees, contract school employees, school health care providers and school volunteers when the perpetrator is at least eighteen, four years older than the child and not the spouse of the child.

FISCAL IMPLICATIONS

See Administrative Implications below.

ADMINISTRATIVE IMPLICATIONS

Agencies report that by expanding the circumstances which would result in second and third degree felonies, additional administrative costs would be generated.

The AOC reports that there will be an administrative impact on the courts resulting from added judicial and clerk time needed to dispose to additional cases.

The AODA and the PD report that modification of a current offense will probably result in an increase of cases filed by District Attorney's offices and therefore an increased number of cases to defend by the Public Defender Offices. An increase in the number of cases filed will increase the costs to both agencies and may increase costs to the Corrections Department due to longer sentences.

TECHNICAL ISSUES

Section 2.F. delete "sixteen" and add instead "eighteen".

OTHER SUBSTANTIVE ISSUES

The addition of sections 30-9-11(D)(2) and 30-9-13(A)(2)(b) dealing with school employees and volunteers eliminates the proof element that a perpetrator had to use their position of authority to coerce the victim into the prohibited acts.

The Bill essentially takes what is, under current law, either a 4th degree felony CSP under 30-9-11(F), (or not a crime in the case of a consenting 17 year old), and elevates the offense to a very high level. Of course, if "coercion" is involved, current section 30-9-11(D)(1) would already apply and impose a 2nd degree felony penalty to such conduct. The severe penalty in this bill is inconsistent with the present statutory scheme. Where no coercion is involved, it would be more consistent with the current scheme to punish the conduct involved as a 4th degree felony, not a 2nd degree felony.

If the rationale is that a school employee is in a position of authority, then perhaps the employee's authority should be known to, or apply to, the child.

There is a possible constitutional problem ("status crime") with enhancing a criminal penalty based solely on employment status of perpetrator.

FAR/sb:ar