SB0521

SENATE BILL 521

54th legislature - STATE OF NEW MEXICO - first session, 2019

INTRODUCED BY

Carlos R. Cisneros and Richard C. Martinez

AN ACT

RELATING TO HUMAN TRAFFICKING; REQUIRING CERTAIN FELONS TO INSTALL BLOCKING SOFTWARE WHILE UNDER SUPERVISION; REQUIRING CERTAIN OFFENDERS TO REGISTER UNDER THE SEX OFFENDER REGISTRATION AND NOTIFICATION ACT; CREATING A FEE; CREATING THE HUMAN TRAFFICKING AND CHILD EXPLOITATION PREVENTION FUND; PROVIDING PENALTIES; MAKING APPROPRIATIONS.

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

SECTION 1. A new section of the Probation and Parole Act is enacted to read:

"[NEW MATERIAL] SEX OFFENDERS--ADDITIONAL TERMS AND CONDITIONS OF PAROLE--REQUIRING BLOCKING SOFTWARE.--

A. As used in the section:

(1) "blocking software" means software that prevents a device from accessing obscene material on the internet;

(2) "internet-capable device" means a device that is capable of providing auditory or visual content through access to the internet;

(3) "obscene material" means content:

(a) that the average individual applying contemporary community standards would find, when considered or taken as a whole, to appeal to the prurient interests;

(b) depicting or describing sexual conduct in a patently offensive way by actual or simulated audio or visual representations; masturbation, excretory functions or exhibitions of a specified anatomical area of oneself or another; or tactile stimulation of the covered or uncovered genitals of oneself or another; and

(4) "sex offender" means a person who:

(a) is a resident of New Mexico who is convicted of a sex offense as defined in Section 29-11A-3 NMSA 1978 pursuant to state, federal, tribal or military law;

(b) changes residence to New Mexico, when that person has been convicted of a sex offense pursuant to state, federal, tribal or military law;

(c) does not have an established residence in New Mexico, but lives in a shelter, halfway house or transitional living facility or stays in multiple locations in New Mexico and who has been convicted of a sex offense pursuant to state, federal, tribal or military law; or

(d) is a resident of another state and who has been convicted of a sex offense pursuant to state, federal, tribal or military law, but who is: 1) employed full-time or part-time in New Mexico for a period of time exceeding fourteen days or for an aggregate period of time exceeding thirty days during any calendar year, including any employment or vocation, whether financially compensated, as a volunteer or for the purpose of government or educational benefit; or 2) enrolled on a full-time or part-time basis in a private or public school or an institution of higher education in New Mexico.

B. A sex offender who is subject to parole, supervised probation, unsupervised probation or a judicially approved community custody release program shall provide all internet-capable devices owned or within the sex offender's custody to the sex offender's supervising officer within forty-eight hours of sentencing or release from custody.

C. The supervising officer shall inventory and shall install and test the blocking software on each internet-capable device.

D. Absent a contrary order from a court, a sex offender shall not own, use, acquire, sell, transfer or possess an internet-capable device upon which blocking software cannot be installed. A court order entered pursuant to this subsection shall include explicit findings as to the rationale for allowing the sex offender to own, use, acquire, sell, transfer or possess an internet-capable device.

E. At each meeting with the sex offender, whether scheduled or unscheduled, the supervising officer shall inventory and inspect each internet-capable device to ensure that the blocking software is installed and functioning properly.

F. A sex offender who acquires an internet-capable device shall submit the device to the sex offender's supervising officer within twenty-four hours.

G. The sex offender shall bear all costs associated with the installation and use of the blocking software."

SECTION 2. Section 29-11A-5 NMSA 1978 (being Laws 1995, Chapter 106, Section 5, as amended by Laws 2007, Chapter 68, Section 2 and by Laws 2007, Chapter 69, Section 6) is amended to read:

"29-11A-5. LOCAL REGISTRY--CENTRAL REGISTRY--ADMINISTRATION BY DEPARTMENT OF PUBLIC SAFETY--PARTICIPATION IN THE NATIONAL SEX OFFENDER REGISTRY--RULES.--

A. A county sheriff shall maintain a local registry of sex offenders in the sheriff's jurisdiction required to register pursuant to the provisions of the Sex Offender Registration and Notification Act.

B. The county sheriff shall forward:

(1) registration information obtained from sex offenders to the department of public safety. The initial registration information and any new registration information subsequently obtained from a sex offender shall be forwarded by the county sheriff no later than ten working days after the information is obtained from a sex offender. If the department of public safety receives information regarding a sex offender from a governmental entity other than a county sheriff, the department shall send that information to the sheriff for the county in which the sex offender resides; and

(2) samples of DNA obtained from sex offenders to the administrative center for the sex offender DNA identification system pursuant to the provisions of the DNA Identification Act.

C. The department of public safety shall maintain a central registry of sex offenders required to register pursuant to the provisions of the Sex Offender Registration and Notification Act. The department shall participate in the national sex offender registry administered by the United States department of justice. The department shall send conviction information and fingerprints for all sex offenders registered in New Mexico to the national sex offender registry administered by the United States department of justice and to the federal bureau of investigation.

D. The department of public safety shall retain registration information regarding a sex offender convicted for any of the following sex offenses for the entirety of the sex offender's natural life:

(1) aggravated criminal sexual penetration or criminal sexual penetration in the first, second or third degree, as provided in Section 30-9-11 NMSA 1978;

(2) criminal sexual contact of a minor in the second, third or fourth degree, as provided in Section

30-9-13 NMSA 1978;

(3) sexual exploitation of children, as provided in Section 30-6A-3 NMSA 1978;

(4) kidnapping, as provided in Section

30-4-1 NMSA 1978, when the victim is less than eighteen years of age and the offender is not a parent of the victim;

(5) criminal sexual contact in the fourth degree, as provided in Section 30-9-12 NMSA 1978; [or]

(6) human trafficking for commercial sexual activity, as provided in Section 30-52-1 NMSA 1978; or

[(6)] (7) attempt to commit any of the sex offenses set forth in Paragraphs (1) through [(5)] (6) of this subsection, as provided in Section 30-28-1 NMSA 1978.

E. The department of public safety shall retain registration information regarding a sex offender convicted for the following offenses for a period of ten years following the sex offender's conviction, release from prison or release from probation or parole, whichever occurs later:

(1) criminal sexual penetration in the fourth degree, as provided in Section 30-9-11 NMSA 1978;

(2) sexual exploitation of children by prostitution, as provided in Section 30-6A-4 NMSA 1978;

(3) false imprisonment, as provided in Section 30-4-3 NMSA 1978, when the victim is less than eighteen years of age and the offender is not a parent of the victim;

(4) aggravated indecent exposure, as provided in Section 30-9-14.3 NMSA 1978;

(5) enticement of child, as provided in Section 30-9-1 NMSA 1978;

(6) incest, as provided in Section 30-10-3 NMSA 1978, when the victim is less than eighteen years of age;

(7) solicitation to commit criminal sexual contact of a minor in the second, third or fourth degree, as provided in Sections 30-9-13 and 30-28-3 NMSA 1978;

(8) child solicitation by electronic communication device, as provided in Section 30-37-3.2 NMSA 1978; or

(9) attempt to commit any of the sex offenses set forth in Paragraphs (1) through [(6)] (8) of this subsection, as provided in Section 30-28-1 NMSA 1978.

F. Notwithstanding the provisions of Subsection E of this section, if a sex offender is convicted a second or subsequent time for a sex offense set forth in that subsection, the department of public safety shall retain information regarding the sex offender for the entirety of the sex offender's natural life.

G. The department of public safety shall adopt rules necessary to carry out the provisions of the Sex Offender Registration and Notification Act. Rules necessary for the collection of DNA samples and the administration and operation of the sex offender DNA identification system shall be adopted by the DNA identification system oversight committee pursuant to the provisions of the DNA Identification Act."

SECTION 3. A new section of Chapter 31, Article 12 NMSA 1978 is enacted to read:

"[NEW MATERIAL] HUMAN TRAFFICKING--FEE UPON CONVICTION.--

A. A person convicted of a violation of, or convicted of attempt or conspiracy to commit a violation of, Section 30-6A-3, 30-6A-4 or 30-52-1 NMSA 1978 shall be assessed, in addition to any other fee or fine, a "human trafficking and child exploitation prevention fee" of two hundred dollars ($200) to pay for victim reparation and to defray the cost of monitoring the electronic devices of persons on probation or parole for a violation of Section 30-52-1 NMSA 1978.

B. Human trafficking and prevention fees shall be deposited in the human trafficking and child exploitation prevention fund."

SECTION 4. A new section of Chapter 31, Article 12 NMSA 1978 is enacted to read:

"[NEW MATERIAL] HUMAN TRAFFICKING AND CHILD EXPLOITATION PREVENTION FUND CREATED.--

A. There is created in the state treasury the "human trafficking and child exploitation prevention fund". All fees collected pursuant to Section 3 of this 2019 act shall be transmitted monthly to the state treasurer for credit to the human trafficking and child exploitation prevention fund. All balances in the human trafficking and child exploitation prevention fund are appropriated to the office of the attorney general for the purposes set forth in Subsections B and C of this section. Payments out of the human trafficking and child exploitation prevention fund shall be made on vouchers issued and signed by the attorney general upon warrants drawn by the department of finance and administration. Earnings of the fund shall be credited to the fund. Any unexpended or unencumbered balance in the human trafficking and child exploitation prevention fund shall not revert at the end of a fiscal year.

B. The "human trafficking victims reparation subaccount" is established in the human trafficking and child exploitation prevention fund. One-half of all money collected pursuant to this section shall be deposited in the subaccount. Money in the subaccount shall be used for:

(1) expenses actually and reasonably incurred as a result of the victim's injury or death;

(2) loss to the victim of earning power as a result of total or partial incapacity;

(3) any other pecuniary loss directly resulting from the victim's injury or death that the attorney general determines to be reasonable and proper; and

(4) any expenses incurred for rehabilitation services; provided, however, awards made pursuant to this subsection shall be made directly to the provider of the rehabilitation services for payment of those services.

C. The "probation and parole monitoring subaccount" is established in the human trafficking and child exploitation prevention fund. One-half of all money collected pursuant to this section shall be deposited in the probation and parole monitoring subaccount. Money in the subaccount shall be used to research, develop, implement and maintain blocking software preventing internet access to sexually suggestive materials by persons on parole or probation for a violation of, or attempt or conspiracy to violate, Section 30-6A-3, 30-6A-4 or 30-52-1 NMSA 1978.

D. A disbursement from the fund shall be made only upon a warrant drawn by the secretary of finance and administration pursuant to a voucher signed by the attorney general."

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