SENATE BILL 352
50th legislature - STATE OF NEW MEXICO - first session, 2011
INTRODUCED BY
Linda M. Lopez
AN ACT
RELATING TO SEX OFFENSES AGAINST CHILDREN; CLARIFYING THAT A DISTRICT ATTORNEY IS NOT REQUIRED TO PROVIDE NOTICE THAT CERTAIN MATERIAL IS HARMFUL TO CHILDREN BEFORE PROSECUTION FOR CERTAIN SEX OFFENSES AGAINST CHILDREN; RECONCILING MULTIPLE AMENDMENTS TO THE DEFINITIONS SECTION IN THE SEX OFFENDER REGISTRATION AND NOTIFICATION ACT IN LAWS 2007.
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 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) 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)] (10) of this subsection, as provided in Section 30-28-1 NMSA 1978."
SECTION 2. 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.
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. The notice provisions of Section 30-37-4 NMSA 1978 shall not apply to this section.
[F.] G. As used in this section, "electronic communication device" means a computer, 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."
SECTION 3. Section 30-37-3.3 NMSA 1978 (being Laws 2007, Chapter 67, Section 1) is amended to read:
"30-37-3.3. CRIMINAL SEXUAL COMMUNICATION WITH A CHILD--PENALTY.--
A. Criminal sexual communication with a child consists of a person knowingly and intentionally communicating directly with a specific child under sixteen years of age 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 four years older than the child.
B. Whoever commits sexual communication with a child is guilty of a fourth degree felony.
C. The notice provisions of Section 30-37-4 NMSA 1978 shall not apply to this section.
[C.] D. As used in this section:
(1) "electronic communication device" means a computer, video recorder, digital camera, fax machine, telephone, pager or any other device that can produce an electronically generated image; and
(2) "intimate parts" means the primary genital area, groin, buttocks, anus or breast."
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