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AN ACT

RELATING TO SEX OFFENDERS; CREATING A NEW CRIMINAL OFFENSE

KNOWN AS CHILD SOLICITATION BY ELECTRONIC COMMUNICATION

DEVICE; ADDING THE OFFENSE OF CHILD SOLICITATION BY

ELECTRONIC COMMUNICATION DEVICE TO SEX OFFENDER REGISTRATION

REQUIREMENTS; PROVIDING AN EXTENDED PERIOD OF PAROLE FOR THE

OFFENSE OF CHILD SOLICITATION BY ELECTRONIC COMMUNICATION

DEVICE.

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

Section 1. Section 29-11A-3 NMSA 1978 (being Laws 1995,

Chapter 106, Section 3, as amended) is amended to read:

"29-11A-3. DEFINITIONS.--As used in the Sex Offender

Registration and Notification Act:

A. "conviction" means a conviction in any court of

competent jurisdiction and includes a deferred sentence, but

does not include a conditional discharge;

B. "institution of higher education" means a:

(1) private or public post-secondary

educational institution;

(2) trade school; or

(3) professional school;

C. "registration requirement" means any

requirement set forth in Section 29-11A-4 NMSA 1978 that

requires a sex offender to register, provide information,

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including a DNA sample, renew, revise or change registration

information or provide written notice or disclosure regarding

the sex offender's status as a sex offender;

D. "sex offender" means a person who:

(1) is a resident of New Mexico who is

convicted of a sex offense in New Mexico;

(2) changes residence to New Mexico, when

that person has been convicted of a sex offense in another

state pursuant to state, federal, tribal or military law;

(3) is a resident of New Mexico who is

convicted of a sex offense pursuant to federal, tribal or

military law;

(4) does not have an established residence

in New Mexico, but lives in a shelter, halfway house or

transitional living facility or stays in multiple locations

in New Mexico and who has been convicted of a sex offense in

New Mexico or any other state pursuant to state, federal,

tribal or military law; or

(5) is a resident of another state and who

has been convicted of a sex offense pursuant to state,

federal, tribal or military law, but who is:

(a) employed full time or part time in

New Mexico for a period of time exceeding fourteen days or

for an aggregate period of time exceeding thirty days during

any calendar year, including any employment or vocation,

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whether financially compensated, volunteered or for the

purpose of government or educational benefit; or

(b) enrolled on a full-time or

part-time basis in a private or public school or an

institution of higher education in New Mexico; and

E. "sex offense" means:

(1) criminal sexual penetration in the

first, second, third or fourth degree, as provided in Section

30-9-11 NMSA 1978;

(2) criminal sexual contact in the fourth

degree, as provided in Section 30-9-12 NMSA 1978;

(3) criminal sexual contact of a minor in

the second, third or fourth degree, as provided in Section

30-9-13 NMSA 1978;

(4) sexual exploitation of children, as

provided in Section 30-6A-3 NMSA 1978;

(5) sexual exploitation of children by

prostitution, as provided in Section 30-6A-4 NMSA 1978;

(6) kidnapping, as provided in Section

30-4-1 NMSA 1978, when the victim is less than eighteen years

of age and the offender is not a parent of the victim;

(7) false imprisonment, as provided in

Section 30-4-3 NMSA 1978, when the victim is less than

eighteen years of age and the offender is not a parent of the

victim;

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(8) aggravated indecent exposure, as

provided in Section 30-9-14.3 NMSA 1978;

(9) enticement of child, as provided in

Section 30-9-1 NMSA 1978;

(10) incest, as provided in Section 30-10-3

NMSA 1978, when the victim is less than eighteen years of

age;

(11) child solicitation by electronic

communication device, as provided in Section 30-37-3.2 NMSA

1978;

(12) solicitation to commit criminal sexual

contact of a minor in the second, third or fourth degree, as

provided in Sections 30-9-13 and 30-28-3 NMSA 1978; or

(13) attempt to commit any of the sex

offenses set forth in Paragraphs (1) through (11) of this

subsection, as provided in Section 30-28-1 NMSA 1978."

Section 2. Section 29-11A-5 NMSA 1978 (being Laws 1995,

Chapter 106, Section 5, as amended) is amended to read:

"29-11A-5. LOCAL REGISTRY--CENTRAL REGISTRY--

ADMINISTRATION BY DEPARTMENT OF PUBLIC SAFETY--PARTICIPATION

IN THE NATIONAL SEX OFFENDER REGISTRY--RULES.--

A. A county sheriff shall maintain a local

registry of sex offenders in the sheriff's jurisdiction

required to register pursuant to the provisions of the Sex

Offender Registration and Notification Act.

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B. The county sheriff shall forward:

(1) registration information obtained from

sex offenders to the department of public safety. The

initial registration information and any new registration

information subsequently obtained from a sex offender shall

be forwarded by the county sheriff no later than ten working

days after the information is obtained from a sex offender.

If the department of public safety receives information

regarding a sex offender from a governmental entity other

than a county sheriff, the department shall send that

information to the sheriff for the county in which the sex

offender resides; and

(2) samples of DNA obtained from sex

offenders to the administrative center for the sex offender

DNA identification system pursuant to the provisions of the

DNA Identification Act.

C. The department of public safety shall maintain

a central registry of sex offenders required to register

pursuant to the provisions of the Sex Offender Registration

and Notification Act. The department shall participate in

the national sex offender registry administered by the United

States department of justice. The department shall send

conviction information and fingerprints for all sex offenders

registered in New Mexico to the national sex offender

registry administered by the United States department of

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justice and to the federal bureau of investigation.

D. The department of public safety shall retain

registration information regarding a sex offender convicted

for any of the following sex offenses for the entirety of the

sex offender's natural life:

(1) criminal sexual penetration in the

first, second or third degree, as provided in Section 30-9-11

NMSA 1978;

(2) criminal sexual contact of a minor in

the second, third or fourth degree, as provided in Section

30-9-13 NMSA 1978;

(3) sexual exploitation of children, as

provided in Section 30-6A-3 NMSA 1978;

(4) kidnapping, as provided in Section

30-4-1 NMSA 1978, when the victim is less than eighteen years

of age and the offender is not a parent of the victim;

(5) criminal sexual contact in the fourth

degree, as provided in Section 30-9-12 NMSA 1978; or

(6) attempt to commit any of the sex

offenses set forth in Paragraphs (1) through (5) of this

subsection, as provided in Section 30-28-1 NMSA 1978.

E. The department of public safety shall retain

registration information regarding a sex offender convicted

for the following offenses for a period of ten years

following the sex offender's conviction, release from prison

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or release from probation or parole, whichever occurs later:

(1) criminal sexual penetration in the

fourth degree, as provided in Section 30-9-11 NMSA 1978;

(2) sexual exploitation of children by

prostitution, as provided in Section 30-6A-4 NMSA 1978;

(3) false imprisonment, as provided in

Section 30-4-3 NMSA 1978, when the victim is less than

eighteen years of age and the offender is not a parent of the

victim;

(4) aggravated indecent exposure, as

provided in Section 30-9-14.3 NMSA 1978;

(5) enticement of child, as provided in

Section 30-9-1 NMSA 1978;

(6) incest, as provided in Section 30-10-3

NMSA 1978, when the victim is less than eighteen years of

age;

(7) solicitation to commit criminal sexual

contact of a minor in the second, third or fourth degree, as

provided in Sections 30-9-13 and 30-28-3 NMSA 1978;

(8) child solicitation by electronic

communication device, as provided in Section 30-37-3.2 NMSA

1978; or

(9) attempt to commit any of the sex

offenses set forth in Paragraphs (1) through (6) of this

subsection, as provided in Section 30-28-1 NMSA 1978.

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F. Notwithstanding the provisions of Subsection E

of this section, if a sex offender is convicted a second or

subsequent time for a sex offense set forth in that

subsection, the department of public safety shall retain

information regarding the sex offender for the entirety of

the sex offender's natural life.

G. The department of public safety shall adopt

rules necessary to carry out the provisions of the Sex

Offender Registration and Notification Act. Rules necessary

for the collection of DNA samples and the administration and

operation of the sex offender DNA identification system shall

be adopted by the DNA identification system oversight

committee pursuant to the provisions of the DNA

Identification Act."

Section 3. Section 30-37-3.2 NMSA 1978 (being Laws

1998, Chapter 64, Section 1, as amended) is amended to read:

"30-37-3.2. CHILD SOLICITATION BY ELECTRONIC

COMMUNICATION DEVICE.--

A. Child solicitation by electronic communication

device consists of a person knowingly and intentionally

soliciting a child under sixteen years of age, by means of an

electronic communication device, to engage in sexual

intercourse, sexual contact or in a sexual or obscene

performance, or to engage in any other sexual conduct when

the perpetrator is at least four years older than the child.

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B. Whoever commits child solicitation by

electronic communication device is guilty of a:

(1) fourth degree felony if the child is at

least thirteen but under sixteen years of age; or

(2) third degree felony if the child is

under thirteen years of age.

C. Whoever commits child solicitation by

electronic communication device and also appears for, attends

or is present at a meeting that the person arranged pursuant

to the solicitation is guilty of a:

(1) third degree felony if the child is at

least thirteen but under sixteen years of age; or

(2) second degree felony if the child is

under thirteen years of age.

D. In a prosecution for child solicitation by

electronic communication device, it is not a defense that the

intended victim of the defendant was a peace officer posing

as a child under sixteen years of age.

E. For purposes of determining jurisdiction, child

solicitation by electronic communication device is committed

in this state if an electronic communication device

transmission either originates or is received in this state.

F. As used in this section, "electronic

communication device" means a computer, video recorder,

digital camera, fax machine, telephone, cellular telephone,

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pager, audio equipment or any other device that can produce

an electronically generated image, message or signal."

Section 4. Section 31-21-10.1 NMSA 1978 (being Laws

2003 (1st S.S.), Chapter 1, Section 9) is amended to read:

"31-21-10.1. SEX OFFENDERS--PERIOD OF PAROLE--TERMS AND

CONDITIONS OF PAROLE.--

A. If the district court sentences a sex offender

to a term of incarceration in a facility designated by the

corrections department, the district court shall include a

provision in the judgment and sentence that specifically

requires the sex offender to serve an indeterminate period of

supervised parole for a period of not less than five years

and not in excess of twenty years. A sex offender's period

of supervised parole may be for a period of less than twenty

years if, at a review hearing provided for in Subsection B of

this section, the state is unable to prove that the sex

offender should remain on parole. Prior to placing a sex

offender on parole, the board shall conduct a hearing to

determine the terms and conditions of supervised parole for

the sex offender. The board may consider any relevant

factors, including:

(1) the nature and circumstances of the

offense for which the sex offender was incarcerated;

(2) the nature and circumstances of a prior

sex offense committed by the sex offender;

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(3) rehabilitation efforts engaged in by the

sex offender, including participation in treatment programs

while incarcerated or elsewhere;

(4) the danger to the community posed by the

sex offender; and

(5) a risk and needs assessment regarding

the sex offender, developed by the sex offender management

board of the New Mexico sentencing commission or another

appropriate entity, to be used by appropriate parole board

personnel.

B. The board shall review the terms and conditions

of a sex offender's supervised parole at two and one-half

year intervals. When a sex offender has served the initial

five years of supervised parole, the board shall also review

the duration of the sex offender's supervised parole at two

and one-half year intervals. When a sex offender has served

the initial five years of supervised parole, at each review

hearing the state shall bear the burden of proving to a

reasonable certainty that the sex offender should remain on

parole.

C. The board may order a sex offender released on

parole to abide by reasonable terms and conditions of parole,

including:

(1) being subject to intensive supervision

by a parole officer of the corrections department;

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(2) participating in an outpatient or

inpatient sex offender treatment program;

(3) a parole agreement by the sex offender

not to use alcohol or drugs;

(4) a parole agreement by the sex offender

not to have contact with certain persons or classes of

persons; and

(5) being subject to alcohol testing, drug

testing or polygraph examinations used to determine if the

sex offender is in compliance with the terms and conditions

of the sex offender's parole.

D. The board shall notify the chief public

defender of an upcoming parole hearing for a sex offender,

and the chief public defender shall make representation

available to the sex offender at the parole hearing.

E. If the board finds that a sex offender has

violated the terms and conditions of the sex offender's

parole, the board may revoke the sex offender's parole or may

order additional terms and conditions of parole.

F. The provisions of this section shall apply to

all sex offenders, except geriatric, permanently

incapacitated and terminally ill inmates eligible for the

medical and geriatric parole program as provided by the

Parole Board Act.

G. As used in this section, "sex offender" means a

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person who is convicted of, pleads guilty to or pleads nolo

contendere to any one of the following offenses:

(1) kidnapping, as provided in Section

30-4-1 NMSA 1978, when committed with intent to inflict a

sexual offense upon the victim;

(2) criminal sexual penetration in the

first, second or third degree, as provided in Section 30-9-11

NMSA 1978;

(3) criminal sexual contact of a minor in

the second or third degree, as provided in Section 30-9-13

NMSA 1978;

(4) sexual exploitation of children in the

second degree, as provided in Section 30-6A-3 NMSA 1978;

(5) sexual exploitation of children by

prostitution in the first or second degree, as provided in

Section 30-6A-4 NMSA 1978; or

(6) child solicitation by electronic

communication device, as provided in Section 30-37-3.2 NMSA

1978."

Section 5. EFFECTIVE DATE.--The effective date of the

provisions of this act is July 1, 2007.