Fiscal impact reports (FIRs) are prepared by the Legislative Finance Committee (LFC) for standing finance
committees of the NM Legislature. The LFC does not assume responsibility for the accuracy of these reports
if they are used for other purposes.
Current FIRs (in HTML & Adobe PDF formats) are a vailable on the NM Legislative Website (legis.state.nm.us).
Adobe PDF versions include all attachments, whereas HTML versions may not. Previously issued FIRs and
attachments may be obtained from the LFC in Suite 101 of the State Capitol Building North.
F I S C A L I M P A C T R E P O R T
SPONSOR HJC
ORIGINAL DATE
LAST UPDATED
2/09/07
2/27/07 HB 880/HJCS
SHORT TITLE
Lack of Consent in Certain Sex Offenses
SB
ANALYST C. Sanchez
APPROPRIATION (dollars in thousands)
Appropriation
Recurring
or Non-Rec
Fund
Affected
FY07
FY08
NFI
(Parenthesis ( ) Indicate Expenditure Decreases)
Duplicates SB 734
SOURCES OF INFORMATION
LFC Files
Responses Received From
Administrative Office of the Courts (AOC)
Attorney General’s Office (AGO)
Commission on Higher Education (CHE)
Public Education Department (PED)
SUMMARY
Synopsis of Bill
The House Judiciary substitute for House Bill 880 amends NMSA 1978, § 30-9-10, which
defines terms, used in various sex crime statutes. The substitute specifies that “Lack of consent
by the victim … is not an element of force or coercion". In 1975, the Legislature rewrote the sex
crime laws to delete lack of consent as an element, in order to abolish the “promiscuity defense"
by which the prior sex lives of victims became the chief focus of rape trials. Instead, various acts
were made unlawful if perpetrated by force or coercion. In 2006, a Supreme Court committee
rewrote the jury instructions for sex crimes to make lack of consent an element of force or
coercion, thus resurrecting the “promiscuity defense" in New Mexico. This substitute will
clarify that the Legislature’s intent has not changed since 1975, and that criminal trials should be
focused on the perpetrator’s actions and intent, not the victim’s.
The substitute also states that physical or verbal resistance by the victim or lack of consent by the
victim is not an element of force or coercion.
pg_0002
House Bill 880/HJCS – Page
2
According to the substitute proof of force or coercion beyond a reasonable doubt is sufficient to
prove unlawfulness.
The HJC substitute also replaces two male pronouns in the same statute with gender-neutral
language, without changing the meaning of the amended definitions.
SIGNIFICANT ISSUES
This substitute clarifies that sexual assault can occur even if a victim consents, which occurs
frequently as the victim is attempting to avoid injury or death and merely complies with the
attackers demands.
30-9-10 NMSA 1978 has served as a model for other state statutes on violent crimes. According
to an article in the Journal of Criminal Law and Criminology (1973- ) entitled, Rape Reform and
a Statutory Consent Defense, rape has been defined as sexual intercourse by force and against the
victim’s will. The essential element distinguishing rape from non-criminal sexual intercourse
was the victim’s lack of consent. In order to convict a defendant of rape, the prosecutor has been
required to prove the subjective element of lack of consent through a number of objective
criteria, including proof that the victim resisted the assailant to the utmost, and that the victim
cried out while being attacked. In opposition to this common perception of the crime, Section 30-
9-10 NMSA states that lack of consent by the victim or physical or verbal resistance of the
victim is not an element of force or coercion for purposes of certain sex offenses. Subsection (5)
has been amended to read as follows:
(5) the perpetration of criminal sexual penetration or criminal sexual contact by a
psychotherapist on [his] the psychotherapist's patient, with or without the patient's consent,
during the course of psychotherapy or within a period of one year following the termination of
psychotherapy.
In addition, the sentence, physical or verbal resistance of the victim is not an element of force or
coercion is amended to read, lack of consent by the victim or physical or verbal resistance of the
victim is not an element of force or coercion.
ADMINISTRATIVE IMPLICATIONS
There may be an administrative impact on the courts as the result of an increase in caseload
and/or in the amount of time necessary to dispose of cases.
OTHER SUBSTANTIVE ISSUES
According to the Attorney General’s Office, if this bill is not enacted trials for sex offenses will
continue to be devoted in large part to the victim’s sexual activity, alleged willingness and state
of mind, etc.
According to 2005 FBI Uniform Crime Reports, New Mexico has the second highest rate of
forcible rape in the nation. Not enacting this bill will discourage victims from coming forward
and prosecutors from bringing charges, and would likely increase the incidence of rape in New
Mexico still further.
pg_0003
House Bill 880/HJCS – Page
3
The Legislature will have acquiesced in a Supreme Court committee’s rewriting of statutes,
establishing a precedent.
DUPLICATES
SB 734
WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL
The definition of “force or coercion" as used in Sections 30-9-10 through 30-9-16 of the
Criminal Code will not be amended to clarify that “lack of consent" is not an element of force or
coercion for the enumerated sex offenses to which these terms apply.
CS/nt