SENATE BILL 291

51st legislature - STATE OF NEW MEXICO - second session, 2014

INTRODUCED BY

Linda M. Lopez

AN ACT

RELATING TO SEX OFFENDERS; ALLOWING FOR A PERMANENT NO CONTACT ORDER TO BE ISSUED PERMANENTLY RESTRICTING OR PROHIBITING A PERSON CONVICTED OF A SEX OFFENSE FROM HAVING CONTACT WITH THE SEX OFFENDER'S VICTIM; PROVIDING PENALTIES.

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

     SECTION 1. [NEW MATERIAL] NO CONTACT ORDER.--

          A. When sentencing a defendant convicted of a sex offense, the judge, upon the request of the district attorney, shall determine whether to issue a permanent no contact order.

          B. The judge shall order the defendant to show cause why a permanent no contact order shall not be issued and shall hold a show cause hearing as part of the sentencing procedures for the defendant.

          C. The victim shall have a right to be heard at the show cause hearing.

          D. The judge sentencing the defendant is the trier of fact regarding the show cause hearing.

          E. If the judge determines that reasonable grounds exist for the victim to fear any future contact with the defendant, the judge shall issue the permanent no contact order. The judge shall enter written findings of fact and the grounds on which the permanent no contact order is issued. The permanent no contact order shall be incorporated into the judgment imposing the sentence on the defendant for the conviction of the sex offense.

          F. The court may grant one or more of the following forms of relief in a permanent no contact order:

                (1) order the defendant not to threaten, visit, assault, molest or otherwise interfere with the victim;

                (2) order the defendant not to follow the victim, including at the victim's workplace;

                (3) order the defendant not to harass the victim;

                (4) order the defendant not to abuse or injure the victim;

                (5) order the defendant not to contact the victim by telephone, written communication or electronic means;

                (6) order the defendant to refrain from entering or remaining present at the victim's residence, school, place of employment or other specified places at times when the victim is present; and

                (7) order other relief deemed necessary and appropriate by the court.

          G. A peace officer may arrest without a warrant and take into custody a restrained party whom the peace officer has probable cause to believe has violated a permanent no contact order that is issued pursuant to this section or entitled to full faith and credit.

          H. A restrained party convicted of violating a permanent no contact order granted by a court pursuant to this section is guilty of a misdemeanor and shall be sentenced in accordance with Section 31-19-1 NMSA 1978. Upon a second or subsequent conviction, an offender shall be sentenced to a jail term of not less than seventy-two consecutive hours that shall not be suspended, deferred or taken under advisement.

          I. At any time after the issuance of the order, the state, at the request of the victim, or the defendant may make a motion to rescind the permanent no contact order. If the court determines that reasonable grounds for the victim to fear any future contact with the defendant no longer exist, the court may rescind the permanent no contact order.

          J. A state agency, court or political subdivision of the state, including a magistrate or municipal court, judicial district, law enforcement agency, county, municipality or home-rule municipality, shall not make available publicly on the internet any information that would likely reveal the identity or location of the party protected under a permanent no contact order. A state agency, court or political subdivision may share court-generated and law-enforcement- generated information contained in secure, government registries for permanent no contact order enforcement purposes.

          K. A local law enforcement agency receiving a permanent no contact order from the clerk of the court issued pursuant to this section shall have the order entered in the national crime information center's order of protection file within seventy-two hours of receipt.  

          L. The remedies provided in this section are in addition to any other civil or criminal remedy available to the victim protected by the permanent no contact order or the state.

          M. As used in this section:

                (1) "permanent no contact order" means a permanent injunction that restricts or prohibits any contact by a defendant with the victim of the sex offense for which the defendant is convicted. The duration of the injunction is the lifetime of the defendant;

                (2) "sex offense" means any crime for which registration is required under the Sex Offender Registration and Notification Act; and

                (3) "victim" means the person against whom the sex offense was committed.

     SECTION 2. Section 29-15-2 NMSA 1978 (being Laws 1995, Chapter 146, Section 2, as amended) is amended to read:

     "29-15-2. DEFINITIONS.--As used in the Missing Persons Information and Reporting Act:

          A. "child" means an individual under the age of eighteen years who is not emancipated;

          B. "clearinghouse" means the missing persons information clearinghouse;

          C. "custodian" means a parent, guardian or other person who exercises legal physical control, care or custody of a child; or a person who performs one or more activities of daily living for an adult;

          D. "endangered person" means a missing person who:

                (1) is in imminent danger of causing harm to the person's self;

                (2) is in imminent danger of causing harm to another;

                (3) is in imminent danger of being harmed by another or who has been harmed by another;

                (4) has been a victim of a crime as provided in the Crimes Against Household Members Act or in Section 30-3A-3 or 30-3A-3.1 NMSA 1978, or their equivalents in any other jurisdiction;

                (5) is or was protected by an order of protection pursuant to the Family Violence Protection Act; [or]                 (6) is or was protected by a permanent no contact order issued pursuant to Section 1 of this 2014 act; or

                [(6)] (7) has Alzheimer's disease, dementia or another degenerative brain disorder or a brain injury;

          E. "immediate family member" means the spouse, nearest relative or close friend of a person;

          F. "law enforcement agency" means a law enforcement agency of the state, a state agency or a political subdivision of the state;

          G. "lead station" means an AM radio station that has been designated as the "state primary station" by the federal communications commission for the emergency alert system;

          H. "missing person" means a person whose whereabouts are unknown to the person's custodian or immediate family member and the circumstances of whose absence indicate that:

                (1) the person did not leave the care and control of the custodian or immediate family member voluntarily and the taking of the person was not authorized by law; or

                (2) the person voluntarily left the care and control of the custodian without the custodian's consent and without intent to return;

          I. "missing person report" means information that is:

                (1) given to a law enforcement agency on a form used for sending information to the national crime information center; and

                (2) about a person whose whereabouts are unknown to the reporter and who is alleged in the form submitted by the reporter to be missing;

          J. "person" means an individual, regardless of age;

          K. "possible match" means the similarities between unidentified human remains and a missing person that would lead one to believe they are the same person;

          L. "reporter" means the person who reports a missing person;

          M. "silver alert" means a notification relating to an endangered person:

                (1) who is a missing person;

                (2) who is fifty years or older; and

                (3) about whom there is a clear indication that the individual has an irreversible deterioration of intellectual faculties;

          N. "state agency" means an agency of the state, a political subdivision of the state or a public post-secondary educational institution; and

          O. "state registrar" means the employee so designated by the public health division of the department of health pursuant to the Vital Statistics Act."

     SECTION 3. Section 30-1-15 NMSA 1978 (being Laws 2002, Chapter 34, Section 1 and Laws 2002, Chapter 35, Section 1, as amended) is amended to read:

     "30-1-15. ALLEGED VICTIMS OF DOMESTIC ABUSE, STALKING OR SEXUAL ASSAULT--FORBEARANCE OF COSTS.--

          A. An alleged victim of an offense specified in Subsection B of this section is not required to bear the cost of:

                (1) the prosecution of a misdemeanor or felony domestic violence offense, including costs associated with filing a criminal charge against an alleged perpetrator of the offense;

                (2) the filing, issuance or service of a warrant;

                (3) the filing, issuance or service of a witness subpoena; or

                (4) the filing, issuance, registration or service of a protection order.

          B. The provisions of Subsection A of this section apply to:

                (1) alleged victims of domestic abuse as defined in Section 40-13-2 NMSA 1978;

                (2) sexual offenses described in Sections

30-9-11 through 30-9-14 and 30-9-14.3 NMSA 1978;

                (3) crimes against household members described in Sections 30-3-12 through 30-3-16 NMSA 1978;

                (4) harassment, stalking and aggravated stalking described in Sections 30-3A-2 through 30-3A-3.1 NMSA 1978; [and]

                (5) the violation of an order of protection that is issued pursuant to the Family Violence Protection Act or entitled to full faith and credit; and

                (6) the violation of a permanent no contact order issued pursuant to Section 1 of this 2014 act."

     SECTION 4. 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 or a permanent no contact order issued pursuant to Section 1 of this 2014 act, 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 degree felony. Upon a second or subsequent conviction, the offender is guilty of a third 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 5. Section 40-13A-2 NMSA 1978 (being Laws 2013, Chapter 47, Section 2) is amended to read:

     "40-13A-2. DEFINITIONS.--As used in the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act:

          A. "foreign protection order" means a protection order issued by a tribunal of another state;

          B. "issuing state" means the state whose tribunal issues a protection order;

          C. "mutual foreign protection order" means a foreign protection order that includes provisions in favor of both the protected individual seeking enforcement of the order and the respondent;

          D. "protected individual" means a person protected by a protection order;

          E. "protection order" means an injunction or other order, issued by a tribunal under the domestic violence, family violence, sex offender or antistalking laws of the issuing state, to prevent a person from engaging in a violent or threatening act against, harassment of, contact or communication with or physical proximity to another person;

          F. "respondent" means the person against whom enforcement of a protection order is sought;

          G. "state" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States. "State" includes an Indian pueblo, tribe, nation or band that has jurisdiction to issue protection orders; and

          H. "tribunal" means a court, agency or other entity authorized by law to issue or modify a protection order."

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