HOUSE BILL 400
49th legislature - STATE OF NEW MEXICO - first session, 2009
INTRODUCED BY
Bill B. O’Neill
AN ACT
RELATING TO CRIMINAL LAW; AMENDING ELEMENTS OF THE CRIMES OF HARASSMENT AND STALKING; PROVIDING FOR HARASSMENT AND STALKING WITH AN ELECTRONIC COMMUNICATION DEVICE; REQUIRING SEX OFFENDER REGISTRATION FOR THE CRIME OF CRIMINAL SEXUAL COMMUNICATION WITH A CHILD; INCREASING PENALTIES; RECONCILING MULTIPLE AMENDMENTS TO THE SAME SECTIONS OF LAW IN LAWS 2007.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 30-3A-1 NMSA 1978 (being Laws 1997, Chapter 10, Section 1) is amended to read:
"30-3A-1. SHORT TITLE.--[Sections 1 through 5 of this act] Chapter 30, Article 3A NMSA 1978 may be cited as the "Harassment and Stalking Act"."
Section 2. A new section of the Harassment and Stalking Act is enacted to read:
"[NEW MATERIAL] DEFINITIONS.--As used in the Harassment and Stalking Act:
A. "electronic communication device" means a computer, internet device, portable media player, video recorder, digital camera, fax machine, telephone, cellular telephone, pager, audio equipment or any other device that can produce an electronically generated image, message or signal; and
B. "household member" means a spouse, former spouse, family member, including a relative, parent, present or former stepparent, present or former in-law, child or co-parent of a child, or a person with whom the victim has had a continuing personal relationship. Cohabitation is not necessary to be deemed a household member for the purposes of the Harassment and Stalking Act."
Section 3. Section 30-3A-2 NMSA 1978 (being Laws 1997, Chapter 10, Section 2) is amended to read:
"30-3A-2. HARASSMENT--[PENALTIES] PENALTY.--
A. Harassment consists of a person knowingly pursuing a pattern of conduct, by any means, including an electronic communication device, that is intended to annoy, seriously alarm or terrorize another person and that serves no lawful purpose. The conduct must be such that it would cause a reasonable person to suffer substantial emotional distress.
B. Whoever commits harassment is guilty of a misdemeanor."
Section 4. Section 30-3A-3 NMSA 1978 (being Laws 1997, Chapter 10, Section 3) is amended to read:
"30-3A-3. STALKING--PENALTIES.--
A. Stalking consists of a person knowingly pursuing a pattern of conduct that would cause a reasonable person to feel frightened, intimidated or threatened. The alleged stalker must intend to place another person in reasonable apprehension of death, bodily harm, sexual assault, confinement or restraint or the alleged stalker must intend to cause a reasonable person to fear for [his] the person's safety or the safety of a household member. In furtherance of the stalking, the alleged stalker must commit one or more of the following acts on more than one occasion:
(1) following another person, in a place other than the residence of the alleged stalker;
(2) placing another person under surveillance:
(a) by being present outside that person's residence, school, workplace or motor vehicle or any other place frequented by that person, other than the residence of the alleged stalker; or
(b) in a remote manner by means of an electronic communication device;
(3) harassing another person; or
(4) communicating with another person, whether verbally, in writing or through the use of an electronic communication device, without legitimate purpose and in a manner that would cause a reasonable person to feel threatened or intimidated or to fear for the person's safety or the safety of a household member.
[B. As used in this section, "household member" means a spouse, former spouse, family member, including a relative, parent, present or former stepparent, present or former in-law, child or co-parent of a child, or a person with whom the victim has had a continuing personal relationship. Cohabitation is not necessary to be deemed a household member for the purposes of this section.
C.] B. Whoever commits stalking is guilty of a [misdemeanor] fourth degree felony. Upon a second or subsequent conviction, the offender is guilty of a [fourth] third degree felony.
[D.] C. In addition to any punishment provided pursuant to the provisions of this section, the court shall order a person convicted of stalking to participate in and complete a program of professional counseling at [his] the person's own expense.
D. In addition to any punishment provided in this section, a court may order a person convicted of stalking to stay away from the victim or a household member of the victim and to avoid electronic communication with the victim or a household member of the victim for up to ten years from the date of the order for an offender placed on probation, or up to ten years from the date of release from incarceration.
E. It is a violation of this section for a person to cause a third party to pursue a pattern of conduct in violation of this section.
F. The incarceration of a person pursuing a pattern of conduct in violation of this section is not a bar to prosecution pursuant to this section.
G. In a prosecution pursuant to this section, it is not necessary to prove that the person was able to carry out any threats made or implied."
Section 5. Section 30-3A-3.1 NMSA 1978 (being Laws 1997, Chapter 10, Section 4) is amended to read:
"30-3A-3.1. AGGRAVATED STALKING--PENALTIES.--
A. Aggravated stalking consists of stalking perpetrated by a person:
(1) who knowingly violates a permanent or temporary order of protection issued by a court, except that mutual violations of such orders may constitute a defense to aggravated stalking;
(2) in violation of a court order setting conditions of release and bond;
(3) when the person is in possession of a deadly weapon; or
(4) when the victim is less than sixteen years of age.
B. Whoever commits aggravated stalking is guilty of a [fourth] third degree felony. Upon a second or subsequent conviction, the offender is guilty of a [third] second degree felony.
C. In addition to any punishment provided pursuant to the provisions of this section, the court shall order a person convicted of aggravated stalking to participate in and complete a program of professional counseling at [his] the person's own expense."
Section 6. A new section of the Harassment and Stalking Act is enacted to read:
"[NEW MATERIAL] LOCATION OF AN OFFENSE.--When a person commits harassment, stalking or aggravated stalking by using an electronic communication device, the offense shall be deemed to have been committed in New Mexico if the electronic communication was originated or received in New Mexico."
Section 7. Section 29-11A-3 NMSA 1978 (being Laws 1995, Chapter 106, Section 3, as amended by Laws 2007, Chapter 68, Section 1 and by Laws 2007, Chapter 69, Section 5) 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, 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 pursuant to state, federal, tribal or military law;
(2) changes residence to New Mexico, when that person has been convicted of a sex offense pursuant to state, federal, tribal or military law;
(3) 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 pursuant to state, federal, tribal or military law; or
(4) 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, 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 any of the following offenses or their equivalents in any other jurisdiction:
(1) aggravated criminal sexual penetration or 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;
(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) criminal sexual communication with a child, as provided in Section 30-37-3.3 NMSA 1978;
[(11)] (12) child solicitation by electronic communication device, as provided in Section 30-37-3.2 NMSA 1978;
[(12)] (13) 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)] (14) attempt to commit any of the sex offenses set forth in Paragraphs (1) through [(10)] (11) of this subsection, as provided in Section 30-28-1 NMSA 1978."
Section 8. Section 29-11A-5 NMSA 1978 (being Laws 1995, Chapter 106, Section 5, as amended by Laws 2007, Chapter 68, Section 2 and by Laws 2007, Chapter 69, Section 6) 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.
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 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) aggravated criminal sexual penetration or 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 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) criminal sexual communication with a child, as provided in Section 30-37-3.3 NMSA 1978;
[(7)] (8) 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)] (9) child solicitation by electronic communication device, as provided in Section 30-37-3.2 NMSA 1978; or
[(9)] (10) attempt to commit any of the sex offenses set forth in Paragraphs (1) through [(6)] (7) of this subsection, as provided in Section 30-28-1 NMSA 1978.
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 9. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2009.