HB0133

HOUSE BILL 133

52nd legislature - STATE OF NEW MEXICO - first session, 2015

INTRODUCED BY

Sharon Clahchischilliage

AN ACT

RELATING TO SEXUAL OFFENSES; EXPANDING THE SCOPE OF CRIMINAL SEXUAL PENETRATION; MODIFYING THE SCOPE OF CRIMINAL SEXUAL CONTACT OF A MINOR; EXPANDING THE SCOPE OF AGGRAVATED INDECENT EXPOSURE.

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

SECTION 1. Section 30-9-11 NMSA 1978 (being Laws 1975, Chapter 109, Section 2, as amended) is amended to read:

"30-9-11. CRIMINAL SEXUAL PENETRATION.--

A. Criminal sexual penetration is the unlawful and intentional causing of a person to engage in sexual intercourse, cunnilingus, fellatio or anal intercourse or the causing of penetration, to any extent and with any object, of the genital or anal openings of another, whether or not there is any emission.

B. Criminal sexual penetration does not include medically indicated procedures.

C. Aggravated criminal sexual penetration consists of all criminal sexual penetration perpetrated on a child [under] younger than thirteen years of age with an intent to kill or with a depraved mind regardless of human life. Whoever commits aggravated criminal sexual penetration is guilty of a first degree felony for aggravated criminal sexual penetration.

D. Criminal sexual penetration in the first degree consists of all criminal sexual penetration perpetrated:

(1) on a child [under] younger than thirteen years of age; or

(2) by the use of force or coercion that results in great bodily harm or great mental anguish to the victim.

Whoever commits criminal sexual penetration in the first degree is guilty of a first degree felony.

E. Criminal sexual penetration in the second degree consists of all criminal sexual penetration perpetrated:

(1) by the use of force or coercion on a child thirteen to eighteen years of age;

(2) on a child thirteen to eighteen years of age when the perpetrator is in a position of authority over the child and uses this authority to coerce the child to submit;

[(2)] (3) on an inmate confined in a correctional facility or jail when the perpetrator is in a position of authority over the inmate;

[(3)] (4) by the use of force or coercion that results in personal injury to the victim;

[(4)] (5) by the use of force or coercion when the perpetrator is aided or abetted by one or more persons;

[(5)] (6) in the commission of any other felony; or

[(6)] (7) when the perpetrator is armed with a deadly weapon.

Whoever commits criminal sexual penetration in the second degree is guilty of a second degree felony. Whoever commits criminal sexual penetration in the second degree when the victim is a child who is thirteen to eighteen years of age is guilty of a second degree felony for a sexual offense against a child and, notwithstanding the provisions of Section 31-18-15 NMSA 1978, shall be sentenced to a minimum term of imprisonment of three years, which shall not be suspended or deferred. The imposition of a minimum, mandatory term of imprisonment pursuant to the provisions of this subsection shall not be interpreted to preclude the imposition of sentencing enhancements pursuant to the provisions of the Criminal Sentencing Act.

F. Criminal sexual penetration in the third degree consists of all criminal sexual penetration perpetrated through the use of force or coercion not otherwise specified in this section.

Whoever commits criminal sexual penetration in the third degree is guilty of a third degree felony.

G. Criminal sexual penetration in the fourth degree consists of all criminal sexual penetration:

(1) not defined in Subsections D through F of this section perpetrated on a child thirteen to sixteen years of age when the perpetrator is [at least] eighteen years of age or older and is at least four years older than the child and not the spouse of that child; or

(2) perpetrated on a child thirteen to eighteen years of age when the perpetrator, who is a licensed school employee, an unlicensed school employee, a school contract employee, a school health service provider or a school volunteer, and who is [at least] eighteen years of age or older and is at least four years older than the child and not the spouse of that child, learns while performing services in or for a school that the child is a student in a school.

Whoever commits criminal sexual penetration in the fourth degree is guilty of a fourth degree felony."

SECTION 2. Section 30-9-13 NMSA 1978 (being Laws 1975, Chapter 109, Section 4, as amended) is amended to read:

"30-9-13. CRIMINAL SEXUAL CONTACT OF A MINOR.--

A. Criminal sexual contact of a minor is the unlawful and intentional touching of or applying force to the intimate parts of a minor or the unlawful and intentional causing of a minor to touch one's intimate parts. For the purposes of this section, "intimate parts" means the primary genital area, groin, buttocks, anus or breast.

B. Criminal sexual contact of a minor in the second degree consists of all criminal sexual contact of the unclothed intimate parts of a minor perpetrated:

(1) on a child [under] younger than thirteen years of age; or

(2) on a child thirteen to eighteen years of age when:

(a) the perpetrator is in a position of authority over the child and uses that authority to coerce the child to submit;

(b) the perpetrator uses force or coercion [that results in personal injury to the child];

(d) the perpetrator is armed with a deadly weapon.

Whoever commits criminal sexual contact of a minor in the second degree is guilty of a second degree felony for a sexual offense against a child and, notwithstanding the provisions of Section 31-18-15 NMSA 1978, shall be sentenced to a minimum term of imprisonment of three years, which shall not be suspended or deferred. The imposition of a minimum, mandatory term of imprisonment pursuant to the provisions of this subsection shall not be interpreted to preclude the imposition of sentencing enhancements pursuant to the provisions of Sections 31-18-17, 31-18-25 and 31-18-26 NMSA 1978.

C. Criminal sexual contact of a minor in the third degree consists of all criminal sexual contact of a minor perpetrated:

(1) on a child [under] younger than thirteen years of age; or

(2) on a child thirteen to eighteen years of age when:

(a) the perpetrator is in a position of authority over the child and uses this authority to coerce the child to submit;

(b) the perpetrator uses force or coercion [which results in personal injury to the child];

(d) the perpetrator is armed with a deadly weapon.

Whoever commits criminal sexual contact of a minor in the third degree is guilty of a third degree felony for a sexual offense against a child.

D. Criminal sexual contact of a minor in the fourth degree consists of all criminal sexual contact [(1)] not defined in Subsection C of this section, of a child thirteen to [eighteen] sixteen years of age [perpetrated with force or coercion; or

(2) of a minor perpetrated on a child thirteen to eighteen years of age when the perpetrator, who is a licensed school employee, an unlicensed school employee, a school contract employee, a school health service provider or a school volunteer, and who is at least eighteen years of age and is at least four years older than the child and not the spouse of that child, learns while performing services in or for a school that the child is a student in a school] when the perpetrator is eighteen years of age or older and at least four years older than the child and not the spouse of the child.

Whoever commits criminal sexual contact in the fourth degree is guilty of a fourth degree felony."

SECTION 3. Section 30-9-14.3 NMSA 1978 (being Laws 1996, Chapter 84, Section 2) is amended to read:

"30-9-14.3. AGGRAVATED INDECENT EXPOSURE.--

A. Aggravated indecent exposure consists of a person knowingly and intentionally exposing [his] the person's primary genital area to:

(1) a child younger than eighteen years of age, in a lewd and lascivious manner, when the perpetrator is eighteen years of age or older and is at least four years older than the child and not the spouse of that child; or

(2) public view in a lewd and lascivious manner, with the intent to threaten or intimidate another person, while committing one or more of the following [acts or] criminal offenses:

[(1) exposure to a child less than eighteen years of age;

(2)] (a) assault, as provided in Section 30-3-1 NMSA 1978;

[(3)] (b) aggravated assault, as provided in Section 30-3-2 NMSA 1978;

[(4)] (c) assault with intent to commit a violent felony, as provided in Section 30-3-3 NMSA 1978;

[(5)] (d) battery, as provided in Section 30-3-4 NMSA 1978;

[(6)] (e) aggravated battery, as provided in Section 30-3-5 NMSA 1978;

[(7)] (f) criminal sexual penetration, as provided in Section 30-9-11 NMSA 1978; or

[(8)] (g) abuse of a child, as provided in Section 30-6-1 NMSA 1978.

B. As used in this section, "primary genital area" means the mons pubis, penis, testicles, mons veneris, vulva or vagina.

C. Whoever commits aggravated indecent exposure is guilty of a fourth degree felony. Whoever commits aggravated indecent exposure to a child younger than eighteen years of age is guilty of a third degree felony.

D. In addition to any punishment provided pursuant to the provisions of this section, the court shall order a person convicted for committing aggravated indecent exposure to participate in and complete a program of professional counseling at [his] the person's own expense."

SECTION 4. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2015.

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