HOUSE JUDICIARY COMMITTEE SUBSTITUTE FOR

HOUSE BILL 43

53rd legislature - STATE OF NEW MEXICO - first session, 2017

AN ACT

RELATING TO SEXUAL OFFENSES; EXPANDING THE SCOPE OF CRIMINAL SEXUAL PENETRATION.

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 that 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 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. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2017.

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