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F I S C A L I M P A C T R E P O R T

SPONSOR SPAC

ORIGINAL DATE

LAST UPDATED

2/09/07

2/27/07 HB

SHORT TITLE

Lack of Consent in Certain Sex Offenses

SB 734/SPACS

ANALYST C. Sanchez

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY07

FY08

NFI

(Parenthesis ( ) Indicate Expenditure Decreases)

Duplicates HB 880

SOURCES OF INFORMATION

LFC Files

Responses Received From

Administrative Office of the Courts (AOC)

Attorney General’s Office (AGO)

Commission on Higher Education (CHE)

Public Education Department (PED)

SUMMARY

Synopsis of Bill

The Senate Public Affairs substitute for Senate Bill 734 amends NMSA 1978, § 30-9-10, which

defines terms, used in various sex crime statutes. The substitute specifies that “Lack of consent

by the victim … is not an element of force or coercion". In 1975, the Legislature rewrote the sex

crime laws to delete lack of consent as an element, in order to abolish the “promiscuity defense"

by which the prior sex lives of victims became the chief focus of rape trials. Instead, various acts

were made unlawful if perpetrated by force or coercion. In 2006, a Supreme Court committee

rewrote the jury instructions for sex crimes to make lack of consent an element of force or

coercion, thus resurrecting the “promiscuity defense" in New Mexico. This substitute will clarify

that the Legislature’s intent has not changed since 1975, and that criminal trials should be

focused on the perpetrator’s actions and intent, not the victim’s.

The substitute also states that physical or verbal resistance by the victim or lack of consent by the

victim is not an element of force or coercion.

Senate Bill 734/SPACS – Page

2

According to the substitute proof of force or coercion beyond a reasonable doubt is sufficient to

prove unlawfulness.

The SPAC substitute also replaces two male pronouns in the same statute with gender-neutral

language, without changing the meaning of the amended definitions.

SIGNIFICANT ISSUES

This substitute clarifies that sexual assault can occur even if a victim consents, which occurs

frequently as the victim is attempting to avoid injury or death and merely complies with the

attackers demands.

30-9-10 NMSA 1978 has served as a model for other state statutes on violent crimes. According

to an article in the Journal of Criminal Law and Criminology (1973- ) entitled, Rape Reform and

a Statutory Consent Defense, rape has been defined as sexual intercourse by force and against the

victim’s will. The essential element distinguishing rape from non-criminal sexual intercourse

was the victim’s lack of consent. In order to convict a defendant of rape, the prosecutor has been

required to prove the subjective element of lack of consent through a number of objective

criteria, including proof that the victim resisted the assailant to the utmost, and that the victim

cried out while being attacked. In opposition to this common perception of the crime, Section 30-

9-10 NMSA states that lack of consent by the victim or physical or verbal resistance of the

victim is not an element of force or coercion for purposes of certain sex offenses. Subsection (5)

has been amended to read as follows:

(5) the perpetration of criminal sexual penetration or criminal sexual contact by a

psychotherapist on [his] the psychotherapist's patient, with or without the patient's consent,

during the course of psychotherapy or within a period of one year following the termination of

psychotherapy.

In addition, the sentence, physical or verbal resistance of the victim is not an element of force or

coercion is amended to read, lack of consent by the victim or physical or verbal resistance of the

victim is not an element of force or coercion.

ADMINISTRATIVE IMPLICATIONS

There may be an administrative impact on the courts as the result of an increase in caseload

and/or in the amount of time necessary to dispose of cases.

OTHER SUBSTANTIVE ISSUES

According to the Attorney General’s Office, if this bill is not enacted trials for sex offenses will

continue to be devoted in large part to the victim’s sexual activity, alleged willingness and state

of mind, etc.

According to 2005 FBI Uniform Crime Reports, New Mexico has the second highest rate of

forcible rape in the nation. Not enacting this bill will discourage victims from coming forward

and prosecutors from bringing charges, and would likely increase the incidence of rape in New

Mexico still further.

Senate Bill 734/SPACS – Page

3

The Legislature will have acquiesced in a Supreme Court committee’s rewriting of statutes,

establishing a precedent.

DUPLICATES

HB 880

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL

The definition of “force or coercion" as used in Sections 30-9-10 through 30-9-16 of the

Criminal Code will not be amended to clarify that “lack of consent" is not an element of force or

coercion for the enumerated sex offenses to which these terms apply.

CS/mt