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F I S C A L I M P A C T R E P O R T
SPONSOR King
ORIGINAL DATE
LAST UPDATED
2/12/07
2/26/07 HB 920/aHJC
SHORT TITLE
Criminal Sexual Communication with a Child
SB
ANALYST C. Sanchez
APPROPRIATION (dollars in thousands)
Appropriation
Recurring
or Non-Rec
Fund
Affected
FY07
FY08
NFI
(Parenthesis ( ) Indicate Expenditure Decreases)
Conflicts with, HB 663, 918 and 735.
SOURCES OF INFORMATION
LFC Files
Responses Received From
Administrative Office of the Courts (AOC)
Corrections Department (CD)
Department of Public Safety (DPS)
Public Education Department (PED)
Children Youth and Families Department (CYFD)
Public Defender (PD)
SUMMARY
Synopsis of HJC Amendment
On page 1, line 25, the House Judiciary Amendment strikes “three" and inserts in lieu thereof
“four". The perpetrator has to be at least four years older than the victim.
Synopsis of Original Bill
House Bill 920 creates the fourth-degree felony crime of “Criminal Sexual Communication with
a Child." The crime consists of knowingly and intentionally communicating directly with a
specific child under 16 by sending the child obscene images of the person’s intimate parts by
means of an electronic communication device when the perpetrator is at least three years older
pg_0002
House Bill 920/aHJC – Page
2
than the child. The bill defines “electronic communication device" and “intimate parts." The
effective date of the act is July 1, 2007.
FISCAL IMPLICATIONS
There will be a minimal administrative cost for statewide update, distribution and documentation
of statutory changes. Any additional fiscal impact on the state would be proportional to the
enforcement of this law and commenced prosecutions. New laws, amendments to existing laws
and new hearings have the potential to increase caseloads in the courts, thus requiring additional
resources to handle the increase.
SIGNIFICANT ISSUES
1) HB 663 and SB 735 amend Section 30-37-3.2 NMSA 1978 to create the crime of
“child solicitation by electronic communication device," consisting of a person
knowingly and intentionally soliciting a child under 16 by means of an electronic
communications device. Under these bills, child solicitation by electronic
communication device when the person knowingly and intentionally communicates with
a child under 16 by sending the child images of the person’s intimate parts by means of
an electronic communication device equals a fourth degree felony. While creating a
similar crime, HB 663 and SB 735 do the following:
Amend Section 29-11A-3 NMSA 1978 to add the crime to the definition of “sex
offense" as used in the Sex Offender Registration and Notification Act, Section
29-11A-1 et. seq. NMSA 1978.
Provide that for purposes of determining jurisdiction, child solicitation by
electronic communication device is committed in this state if an electronic
communication device transmission either originates or is received in this state.
Amend Section 31-21-10.1 NMSA 1978 to include child solicitation by electronic
communication device within the meaning of “sex offender" for purposes of
determining periods, terms and conditions of parole.
ADMINISTRATIVE IMPLICATIONS
The Corrections Department can probably administratively absorb any minimal increases in the
prison population and probation/parole caseloads.
CONFLICT, DUPLICATION, COMPANIONSHIP, RELATIONSHIP
HB 663, 918 and 735.
This bill duplicates a section C from section 2 of HB 663 and SB 735.
TECHNICAL ISSUES
As written the law would require prosecution and law enforcement to prove that the person
knowingly communicated with a child. Perpetrators that use methods identified in the bill to
entice children would only be charged if the person they are communicating is a child and not
when law enforcement is using preventive tools to identify predators.
The definition of “Electronic Communication Device" is a list of items including a computer,
pg_0003
House Bill 920/aHJC – Page
3
video recorder, digital camera, fax machine, telephone, pager, audio equipment or any other
device that can produce “electronically generated image, message or signal." This list fails to
differentiate telephones from cell-phones and the technology used for each is different.
Also, compare federal law at, 18 U.S. Code Section 1471, “Whoever, using the mail or any
facility or means of interstate or foreign commerce, knowingly transfers obscene matter to
another individual who has not attained the age of 16 years, knowing that such other individual
has not attained the age of 16 years, or attempts to do so, shall be fined under this title,
imprisoned not more than 10 years, or both."
OTHER SUBSTANTIVE ISSUES
There is no definition of “obscene images;" this omission may create unequal standards
throughout the state as each prosecutor and judge decide what constitutes an “obscene image."
Also, limiting the image only to the “intimate parts" of the defendant could make for some very
revealing defenses.
The prohibition in this bill would not prohibit a person from mailing or giving a child under 16
photographs, a CD, DVD or VHS recording of obscene images of that person’s intimate parts.
The sponsor might consider including the sending to children, by a person three years older, any
obscene images as defined within this bill.
ALTERNATIVES
1)
Amend Section 29-11A-3 NMSA 1978 to add the crime of Criminal Sexual
Communication with a Child" to the definition of “sex offense" as used in the Sex
Offender Registration and Notification Act, Section 29-11A-1 et. seq. NMSA 1978.
2)
Provide that for purposes of determining jurisdiction, the crime is committed in this
state if an electronic communication device transmission either originates or is
received in this state.
3)
Amend Section 31-21-10.1 NMSA 1978 to include Criminal Sexual Communication
with a Child within the meaning of “sex offender" for purposes of determining
periods, terms and conditions of parole.
4)
On line 22 after person knowingly and intentionally communicating, add or a
reasonable person would believe that he or she
is communicating with…….
WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL
The continual advancement in technology continues to be an area a where laws must be evolving
to protect society from predators that use technology to victimize children.
CS/nt