HB0309

HOUSE BILL 309

53rd legislature - STATE OF NEW MEXICO - second session, 2018

INTRODUCED BY

Kelly K. Fajardo

AN ACT

RELATING TO SEXUAL OFFENSES; INCREASING THE PENALTIES FOR CRIMINAL SEXUAL PENETRATION PERPETRATED AGAINST A CHILD AND CRIMINAL SEXUAL CONTACT OF A MINOR.

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:

(1) causing of a person to engage in sexual intercourse, cunnilingus, fellatio or anal intercourse; or

(2) 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 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 thirteen years of age; [or]

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

(a) by the use of force or coercion;

(b) when the perpetrator is in a position of authority over the child; or

[(2)] (3) 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. Whoever commits criminal sexual penetration in the first degree when the victim is a child under eighteen years of age, notwithstanding the provisions of Section 31-18-15 NMSA 1978, shall be sentenced to a minimum term of imprisonment of eighteen years, which shall not be suspended or deferred. The imposition of a minimum, mandatory term of imprisonment provided in this subsection shall not be interpreted to preclude the imposition of sentencing enhancements pursuant to the Criminal Sentencing Act.

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 not otherwise specified in this section;

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

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

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

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

(6) 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] fifteen 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:

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

[(2)] (3) 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] third degree as provided in Paragraph (1) of this subsection is guilty of a [fourth] third degree felony. Whoever commits criminal sexual penetration in the third degree as provided in Paragraph (2) or (3) of this subsection is guilty of a third 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 six years, which shall not be suspended or deferred. The imposition of a minimum, mandatory term of imprisonment provided in this subsection shall not be interpreted to preclude the imposition of sentencing enhancements pursuant to the Criminal Sentencing Act."

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] first degree consists of all criminal sexual contact:

(1) of the unclothed intimate parts of a minor perpetrated [(1)] on a child under thirteen years of age; or

(2) perpetrated on a child [thirteen to] under 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] first degree is guilty of a [second] first 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] eighteen 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] Section 31-18-17, 31-18-25 [and] or 31-18-26 NMSA 1978.

C. Criminal sexual contact of a minor in the [third] second degree consists of all criminal sexual contact of a minor perpetrated [(1)] on a child under 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] second degree is guilty of a [third] 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 fifteen 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 Section 31-18-17, 31-18-25 or 31-18-26 NMSA 1978.

D. Criminal sexual contact of a minor in the [fourth] third degree consists of all criminal sexual contact

[(1) not defined in Subsection C of this section, of a child thirteen to eighteen 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.

Whoever commits criminal sexual contact in the [fourth] third degree is guilty of a [fourth] third 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 six years, which shall not be suspended or deferred. The imposition of a minimum, mandatory term of imprisonment provided in this subsection shall not be interpreted to preclude the imposition of sentencing enhancements pursuant to the Criminal Sentencing Act."

SECTION 3. Section 31-18-25 NMSA 1978 (being Laws 1996, Chapter 79, Section 1, as amended) is amended to read:

"31-18-25. TWO VIOLENT SEXUAL OFFENSE CONVICTIONS-- MANDATORY LIFE IMPRISONMENT--EXCEPTION.--

A. When a defendant is convicted of a second violent sexual offense, and each violent sexual offense conviction is part of a separate transaction or occurrence, and at least the second violent sexual offense conviction is in New Mexico, the defendant shall, in addition to the punishment imposed for the second violent sexual offense conviction, be punished by a sentence of life imprisonment. The life imprisonment sentence shall be subject to parole pursuant to the provisions of Section 31-21-10 NMSA 1978.

B. Notwithstanding the provisions of Subsection A of this section, when a defendant is convicted of a second violent sexual offense, and each violent sexual offense conviction is part of a separate transaction or occurrence, and the victim of each violent sexual offense was less than thirteen years of age at the time of the offense, and at least the second violent sexual offense conviction is in New Mexico, the defendant shall be punished by a sentence of life imprisonment without the possibility of parole.

C. The sentence of life imprisonment shall be imposed after a sentencing hearing, separate from the trial or guilty plea proceeding resulting in the second violent sexual offense conviction, pursuant to the provisions of Section 31-18-26 NMSA 1978.

D. For the purposes of this section, a violent sexual offense conviction incurred by a defendant before the defendant reaches the age of eighteen shall not count as a violent sexual offense conviction.

E. When a defendant has a felony conviction from another state, the felony conviction shall be considered a violent sexual offense for the purposes of the Criminal Sentencing Act if the crime would be considered a violent sexual offense in New Mexico.

F. As used in the Criminal Sentencing Act, "violent sexual offense" means:

(1) criminal sexual penetration in the first degree, as provided in Subsection D of Section 30-9-11 NMSA 1978; or

(2) criminal sexual penetration in the second degree or criminal sexual penetration in the second degree when the victim is a child who is thirteen to eighteen years of age, as provided in Subsection E of Section 30-9-11 NMSA 1978."

SECTION 4. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2018.

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