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

SPONSOR Lopez

ORIGINAL DATE

LAST UPDATED

2/17/07

3/07/07 HB

SHORT TITLE

Criminal Sexual Communication with a Child

SB 1106/aSJC

ANALYST C. Sanchez

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY07

FY08

NFI

(Parenthesis ( ) Indicate Expenditure Decreases)

Duplicates HB 920

Conflicts with, HB 663, 918 and 735

SOURCES OF INFORMATION

LFC Files

Responses Received From

Administrative Office of the Courts (AOC)

Corrections Department (CD)

Department of Public Safety (DPS)

Public Education Department (PED)

Children Youth and Families Department (CYFD)

Public Defender (PD)

SUMMARY

Synopsis of SJC Amendment

The Senate Judiciary amendment on page 1, line 25, strikes “three" and inserts in lieu thereof

“four". The perpetrator has to be at least four years older than the victim.

Synopsis of Original Bill

Senate Bill 1106 creates the fourth-degree felony crime of “Criminal Sexual Communication

with a Child." The crime consists of knowingly and intentionally communicating directly with a

specific child under 16 by sending the child obscene images of the person’s intimate parts by

means of an electronic communication device when the perpetrator is at least three years older

Senate Bill 1106/aSJC – Page

2

than the child. The bill defines “electronic communication device" and “intimate parts." The

effective date of the act is July 1, 2007.

FISCAL IMPLICATIONS

There will be a minimal administrative cost for statewide update, distribution and documentation

of statutory changes. Any additional fiscal impact on the state would be proportional to the

enforcement of this law and commenced prosecutions. New laws, amendments to existing laws

and new hearings have the potential to increase caseloads in the courts, thus requiring additional

resources to handle the increase.

SIGNIFICANT ISSUES

HB 663 and SB 735 amend Section 30-37-3.2 NMSA 1978 to create the crime of “child

solicitation by electronic communication device," consisting of a person knowingly and

intentionally soliciting a child under 16 by means of an electronic communications device.

Under these bills, child solicitation by electronic communication device when the person

knowingly and intentionally communicates with a child under 16 by sending the child images of

the person’s intimate parts by means of an electronic communication device equals a fourth

degree felony. While creating a similar crime, HB 663 and SB 735 do the following:

•

Amend Section 29-11A-3 NMSA 1978 to add the crime to the definition of “sex offense"

as used in the Sex Offender Registration and Notification Act, Section 29-11A-1 et. seq.

NMSA 1978.

•

Provide that 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.

•

Amend Section 31-21-10.1 NMSA 1978 to include child solicitation by electronic

communication device within the meaning of “sex offender" for purposes of determining

periods, terms and conditions of parole.

ADMINISTRATIVE IMPLICATIONS

The Corrections Department can probably administratively absorb any minimal increases in the

prison population and probation/parole caseloads.

CONFLICT, DUPLICATION, COMPANIONSHIP, RELATIONSHIP

Senate Bill 1106 conflicts with House Bills 663, 918 and 735. The bill duplicates House Bill

920.

TECHNICAL ISSUES

As written the law would require prosecution and law enforcement to prove that the person

knowingly communicated with a child. Perpetrators that use methods identified in the bill to

entice children would only be charged if the person they are communicating is a child and not

when law enforcement is using preventive tools to identify predators.

The definition of “Electronic Communication Device" is a list of items including a computer,

video recorder, digital camera, fax machine, telephone, pager, audio equipment or any other

Senate Bill 1106/aSJC – Page

3

device that can produce “electronically generated image, message or signal." This list fails to

differentiate telephones from cell-phones and the technology used for each is different. Also,

compare federal law at, 18 U.S. Code Section 1471, “Whoever, using the mail or any facility or

means of interstate or foreign commerce, knowingly transfers obscene matter to another

individual who has not attained the age of 16 years, knowing that such other individual has not

attained the age of 16 years, or attempts to do so, shall be fined under this title, imprisoned not

more than 10 years, or both."

OTHER SUBSTANTIVE ISSUES

There is no definition of “obscene images;" this omission may create unequal standards

throughout the state as each prosecutor and judge decide what constitutes an “obscene image."

Also, limiting the image only to the “intimate parts" of the defendant could make for some very

revealing defenses.

The prohibition in this bill would not prohibit a person from mailing or giving a child under 16

photographs, a CD, DVD or VHS recording of obscene images of that person’s intimate parts.

The sponsor might consider including the sending to children, by a person three years older, any

obscene images as defined within this bill.

ALTERNATIVES

1)

Amend Section 29-11A-3 NMSA 1978 to add the crime of Criminal Sexual

Communication with a Child" to the definition of “sex offense" as used in the Sex

Offender Registration and Notification Act, Section 29-11A-1 et. seq. NMSA 1978.

2)

Provide that for purposes of determining jurisdiction, the crime is committed in this

state if an electronic communication device transmission either originates or is

received in this state.

3)

Amend Section 31-21-10.1 NMSA 1978 to include Criminal Sexual Communication

with a Child within the meaning of “sex offender" for purposes of determining

periods, terms and conditions of parole.

4)

On line 22 after person knowingly and intentionally communicating, add or a

reasonable person would believe that he or she

is communicating with…….

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL

The continual advancement in technology continues to be an area a where laws must be evolving

to protect society from predators that use technology to victimize children.

CS/mt:csd