SENATE BILL 61

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

INTRODUCED BY

Daniel A. Ivey-Soto

AN ACT

RELATING TO DOMESTIC VIOLENCE; ADDING DEFINITIONS OF "SUFFOCATION" AND "STRANGULATION" TO THE FAMILY VIOLENCE PROTECTION ACT, THE CRIMES AGAINST HOUSEHOLD MEMBERS ACT AND THE ABUSE AND NEGLECT ACT; CLARIFYING THAT THE CRIME OF AGGRAVATED BATTERY AGAINST A HOUSEHOLD MEMBER MAY BE COMMITTED BY SUFFOCATION OR STRANGULATION.

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

     SECTION 1. Section 30-3-11 NMSA 1978 (being Laws 1995, Chapter 221, Section 2, as amended) is amended to read:

     "30-3-11. DEFINITIONS.--As used in the Crimes Against Household Members Act:

          A. "household member" means a spouse, former spouse, parent, present or former stepparent, present or former parent in-law, grandparent, grandparent-in-law, a co-parent of a child or a person with whom a person has had a continuing personal relationship. Cohabitation is not necessary to be deemed a household member for the purposes of the Crimes Against Household Members Act; [and]

          B. "continuing personal relationship" means a dating or intimate relationship;

          C. "strangulation" means the unlawful touching or application of force to another person's neck or throat with intent to injure that person, the result of which impedes the person's normal breathing or blood circulation; and

          D. "suffocation" means the unlawful touching or application of force that blocks the nose or mouth of another person with intent to injure that person, the result of which impedes the person's normal breathing or blood circulation."

     SECTION 2. Section 30-3-16 NMSA 1978 (being Laws 1995, Chapter 221, Section 7, as amended) is amended to read:

     "30-3-16. AGGRAVATED BATTERY AGAINST A HOUSEHOLD MEMBER.--

          A. Aggravated battery against a household member consists of the unlawful touching or application of force to the person of a household member with intent to injure that person or another.

          B. Whoever commits aggravated battery against a household member is guilty of a misdemeanor if the aggravated battery against a household member is committed by inflicting an injury to that person that is not likely to cause death or great bodily harm, but that does cause painful temporary disfigurement or temporary loss or impairment of the functions of any member or organ of the body [is guilty of a misdemeanor].

          C. Whoever commits aggravated battery against a household member is guilty of a third degree felony if the aggravated battery against a household member is committed:                 (1) by inflicting great bodily harm [or doing so];

                (2) with a deadly weapon [or doing so];

                (3) by strangulation or suffocation; or

                (4) in any manner whereby great bodily harm or death can be inflicted [is guilty of a third degree felony].

          D. Upon conviction pursuant to Subsection B of this section, an offender shall be required to participate in and complete a domestic violence offender treatment or intervention program approved by the children, youth and families department pursuant to rules promulgated by the department that define the criteria for such programs.

          E. Notwithstanding any provision of law to the contrary, if a sentence imposed pursuant to the provisions of Subsection B of this section is suspended or deferred in whole or in part, the period of probation may extend beyond three hundred sixty-four days but may not exceed two years. If an offender violates a condition of probation, the court may impose any sentence that the court could originally have imposed and credit shall not be given for time served by the offender on probation; provided that the total period of incarceration shall not exceed three hundred sixty-four days and the combined period of incarceration and probation shall not exceed two years."

     SECTION 3. Section 32A-4-2 NMSA 1978 (being Laws 1993, Chapter 77, Section 96, as amended) is amended to read:

     "32A-4-2. DEFINITIONS.--As used in the Abuse and Neglect Act:

          A. "abandonment" includes instances when the parent, without justifiable cause:

                (1) left the child without provision for the child's identification for a period of fourteen days; or

                (2) left the child with others, including the other parent or an agency, without provision for support and without communication for a period of:

                     (a) three months if the child was under six years of age at the commencement of the three-month period; or

                     (b) six months if the child was over six years of age at the commencement of the six-month period;

          B. "abused child" means a child:

                (1) who has suffered or who is at risk of suffering serious harm because of the action or inaction of the child's parent, guardian or custodian;

                (2) who has suffered physical abuse, emotional abuse or psychological abuse inflicted or caused by the child's parent, guardian or custodian;

                (3) who has suffered sexual abuse or sexual exploitation inflicted by the child's parent, guardian or custodian;

                (4) whose parent, guardian or custodian has knowingly, intentionally or negligently placed the child in a situation that may endanger the child's life or health; or

                (5) whose parent, guardian or custodian has knowingly or intentionally tortured, cruelly confined or cruelly punished the child;

          C. "aggravated circumstances" includes those circumstances in which the parent, guardian or custodian has:

                (1) attempted, conspired to cause or caused great bodily harm to the child or great bodily harm or death to the child's sibling;

                (2) attempted, conspired to cause or caused great bodily harm or death to another parent, guardian or custodian of the child;

                (3) attempted, conspired to subject or has subjected the child to torture, chronic abuse or sexual abuse; or

                (4) had parental rights over a sibling of the child terminated involuntarily;

           D. "educational decision maker" means an individual appointed by the children's court to attend school meetings and to make decisions about the child's education that a parent could make under law, including decisions about the child's educational setting, and the development and implementation of an individual education plan for the child;

           E. "fictive kin" means a person not related by birth, adoption or marriage with whom a child has an emotionally significant relationship;

           F. "great bodily harm" means an injury to a person that creates a high probability of death, that causes serious disfigurement or that results in permanent or protracted loss or impairment of the function of a member or organ of the body;

           G. "neglected child" means a child:

                (1) who has been abandoned by the child's parent, guardian or custodian;

                (2) who is without proper parental care and control or subsistence, education, medical or other care or control necessary for the child's well-being because of the faults or habits of the child's parent, guardian or custodian or the failure or refusal of the parent, guardian or custodian, when able to do so, to provide them;

                (3) who has been physically or sexually abused, when the child's parent, guardian or custodian knew or should have known of the abuse and failed to take reasonable steps to protect the child from further harm;

                (4) whose parent, guardian or custodian is unable to discharge that person's responsibilities to and for the child because of incarceration, hospitalization or physical or mental disorder or incapacity; or

                (5) who has been placed for care or adoption in violation of the law; provided that nothing in the Children's Code shall be construed to imply that a child who is being provided with treatment by spiritual means alone through prayer, in accordance with the tenets and practices of a recognized church or religious denomination, by a duly accredited practitioner thereof is for that reason alone a neglected child within the meaning of the Children's Code; and further provided that no child shall be denied the protection afforded to all children under the Children's Code;

          H. "physical abuse" includes any case in which the child suffers strangulation or suffocation and any case in which the child exhibits evidence of skin bruising, bleeding, malnutrition, failure to thrive, burns, fracture of any bone, subdural hematoma, soft tissue swelling or death and:

                (1) there is not a justifiable explanation for the condition or death;

                (2) the explanation given for the condition is at variance with the degree or nature of the condition;

                (3) the explanation given for the death is at variance with the nature of the death; or

                (4) circumstances indicate that the condition or death may not be the product of an accidental occurrence;

          I. "relative" means a person related to another person by birth, adoption or marriage within the fifth degree of consanguinity;

          J. "sexual abuse" includes criminal sexual contact, incest or criminal sexual penetration, as those acts are defined by state law;

          K. "sexual exploitation" includes:

                (1) allowing, permitting or encouraging a child to engage in prostitution;

                (2) allowing, permitting, encouraging or engaging a child in obscene or pornographic photographing; or

                (3) filming or depicting a child for obscene or pornographic commercial purposes, as those acts are defined by state law;

          L. "sibling" means a brother or sister having one or both parents in common by birth or adoption; [and]

          M. "strangulation" has the same meaning as set forth in Section 30-3-11 NMSA 1978;

          N. "suffocation" has the same meaning as set forth in Section 30-3-11 NMSA 1978; and

          [M.] O. "transition plan" means an individualized written plan for a child, based on the unique needs of the child, that outlines all appropriate services to be provided to the child to increase independent living skills. The plan shall also include responsibilities of the child, and any other party as appropriate, to enable the child to be self-sufficient upon emancipation."

     SECTION 4. Section 40-13-2 NMSA 1978 (being Laws 1987, Chapter 286, Section 2, as amended) is amended to read:

     "40-13-2. DEFINITIONS.--As used in the Family Violence Protection Act:

          A. "continuing personal relationship" means a dating or intimate relationship;

          B. "co-parents" means persons who have a child in common, regardless of whether they have been married or have lived together at any time;

          C. "court" means the district court of the judicial district where an alleged victim of domestic abuse resides or is found;

          D. "domestic abuse":

                (1) means an incident of stalking or sexual assault whether committed by a household member or not;

                (2) means an incident by a household member against another household member consisting of or resulting in:

                     (a) physical harm;

                     (b) severe emotional distress;

                     (c) bodily injury or assault;

                     (d) a threat causing imminent fear of bodily injury by any household member;

                     (e) criminal trespass;

                     (f) criminal damage to property;

                     (g) repeatedly driving by a residence or work place;

                     (h) telephone harassment;

                     (i) harassment; [or]

                     (j) strangulation;

                     (k) suffocation; or

                     [(j)] (l) harm or threatened harm to children as set forth in this paragraph; and

                (3) does not mean the use of force in self-defense or the defense of another;

          E. "household member" means a spouse, former spouse, parent, present or former stepparent, present or former parent in-law, grandparent, grandparent-in-law, child, stepchild, grandchild, co-parent of a child or a person with whom the petitioner has had a continuing personal relationship. Cohabitation is not necessary to be deemed a household member for purposes of this section;

          F. "mutual order of protection" means an order of protection that includes provisions that protect both parties;

          G. "order of protection" means an injunction or a restraining or other court order granted for the protection of a victim of domestic abuse;

          H. "protected party" means a person protected by an order of protection; [and]

          I. "restrained party" means a person who is restrained by an order of protection;

          J. "strangulation" has the same meaning as set forth in Section 30-3-11 NMSA 1978; and

          K. "suffocation" has the same meaning as set forth in Section 30-3-11 NMSA 1978."

     SECTION 5. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2018.

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