56th legislature - STATE OF NEW MEXICO - first session, 2023

Mark Moores and Brenda G. McKenna and Andrea Romero and

Daniel A. Ivey-Soto and Andrea Reeb

RELATING TO CRIMES; CREATING THE CRIMES OF BESTIALITY AND AGGRAVATED BESTIALITY; REQUIRING REGISTRATION AS A SEX OFFENDER; PRESCRIBING PENALTIES.

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

SECTION 1. Section 29-11A-3 NMSA 1978 (being Laws 1995, Chapter 106, Section 3, as amended) is amended to read:

"29-11A-3. DEFINITIONS.--As used in the Sex Offender Registration and Notification Act:

A. "business day" means a day that is not a Saturday, a Sunday or a state holiday;

B. "conviction" means a conviction in any court of competent jurisdiction and includes a deferred sentence, but does not include a conditional discharge;

C. "department" means the department of public safety;

D. "institution of higher education" means a:

(1) private or public post-secondary educational institution;

(2) trade school; or

(3) professional school;

E. "habitually lives" means any place where a sex offender lives for at least thirty days in any three-hundred-sixty-five-day period;

F. "out-of-state registrant" means any person who establishes a residence in New Mexico while the person is required to register as a sex offender in another state or territory;

G. "registration requirement" means any requirement set forth in Section 29-11A-4 NMSA 1978 that requires a sex offender to register; provide information, including a DNA sample; renew, revise or change registration information; or provide written notice or disclosure regarding the sex offender's status as a sex offender;

H. "sex offender" means a person who:

(1) is a resident of New Mexico who is convicted of a sex offense pursuant to state, federal, tribal or military law;

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

(3) 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

(4) 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:

(a) 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, volunteered or for the purpose of government or educational benefit; or

(b) enrolled on a full-time or part-time basis in a private or public school or an institution of higher education in New Mexico;

I. "sex offense" means any of the following offenses or their equivalents in any other jurisdiction:

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

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

(3) criminal sexual contact of a minor in the second, third or fourth degree, as provided in Section 30-9-13 NMSA 1978;

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

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

(6) kidnapping, as provided in Section 30-4-1 NMSA 1978, when committed with the intent to inflict a sexual offense;

(7) false imprisonment, as provided in Section 30-4-3 NMSA 1978, when committed with the intent to inflict a sexual offense;

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

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

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

(11) child solicitation by electronic communication device, as provided in Section 30-37-3.2 NMSA 1978, for convictions occurring on or after July 1, 2013;

(12) 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; [or]

(13) attempt to commit any of the sex offenses set forth in Paragraphs (1) through (11) of this subsection, as provided in Section 30-28-1 NMSA 1978; or

(14) bestiality or aggravated bestiality, as provided in Section 30-9A-3 NMSA 1978; and

J. "social networking site" means an internet web site that facilitates online social interaction by offering a mechanism for communication with other users, where such users are likely to include a substantial number of minors under the age of sixteen, and allowing users, through the creation of web pages, profiles or other means, to provide information about themselves that is available to the public or to other users."

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

(7) bestiality or aggravated bestiality in the second or third degree as provided in Section 30-9A-3 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) of this subsection, as provided in Section 30-28-1 NMSA 1978; or

(10) bestiality in the fourth degree, as provided in Section 30-9A-3 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 the Criminal Code, Section 30-9A-1 NMSA 1978, is enacted to read:

"30-9A-1. [NEW MATERIAL] SHORT TITLE.--Chapter 30, Article 9A NMSA 1978 may be cited as the "Animal Sexual Abuse Act"."

SECTION 4. A new section of the Criminal Code, Section 30-9A-2 NMSA 1978, is enacted to read:

"30-9A-2. [NEW MATERIAL] DEFINITIONS.--As used in the Animal Sexual Abuse Act:

A. "animal" means any nonhuman wild or domestic creature, including livestock, alive or dead, in any setting;

B. "bestiality" means sexual contact between or involving a human being and an animal;

C. "coerce" means the use of threat, physical force or violence against another person to commit an act of bestiality;

D. "manipulate" means the use of persuasion, extortion, retaliation, deceit or other acts not involving force or coercion to cause another person to commit an act of bestiality;

E. "person" means a human being;

F. "serious bodily injury" means bodily harm to an animal requiring immediate medical attention or that may result in permanent disability, disfigurement or death;

G. "sexual contact" means:

(1) intentional physical contact between the anus, genitals or other body part of a person and the genitals or anus of an animal, whether or not there is any emission; or

(2) intentional insertion of a body part of a person into the mouth, anus or genitals of an animal, or of an object placed by a person into the anus or genitals of an animal, whether or not there is any emission.

"Sexual contact" does not include accepted veterinary medical practices; accepted animal husbandry, care and grooming practices in the caretaking of animals; accepted practices related to the insemination of animals for the purpose of procreation; or accepted practices related to conformation judging;

H. "solicit" means to entice, induce, encourage or attempt to persuade another person to commit an act of bestiality; and

I. "visual or print medium" means:

(1) any film, photograph, negative, slide, computer diskette, videotape, videodisc, computer-generated or electronically generated imagery or other similar media; or

(2) any book, magazine or other form of publication or photographic reproduction containing or incorporating any film, photograph, negative, slide, computer diskette, videotape, videodisc, computer-generated or electronically generated imagery or similar media."

SECTION 5. A new section of the Criminal Code, Section 30-9A-3 NMSA 1978, is enacted to read:

"30-9A-3. [NEW MATERIAL] BESTIALITY--AGGRAVATED BESTIALITY--PENALTIES--REGISTRATION AS SEX OFFENDER.--

A. Bestiality consists of a person intentionally:

(1) engaging in, submitting to, observing, furthering, causing, aiding, abetting or inviting sexual contact between a person and an animal;

(2) selling or offering to sell or transfer; advertising for sale or transfer; possessing; purchasing or offering to purchase; or otherwise obtaining an animal with the intent that the animal be used for bestiality;

(3) organizing, promoting, conducting or participating as an observer in an act of bestiality;

(4) allowing bestiality to be conducted on any premises owned or controlled by a person; or

(5) possessing or distributing, selling, transmitting or possessing with the intent to distribute, sell, or transmit any visual or print medium depicting bestiality.

A person who commits bestiality is guilty of a fourth degree felony for the first violation and is guilty of a third degree felony for a second or subsequent violation. A person who commits bestiality that results in serious bodily injury or death of an animal or for any act in the presence of a minor person is guilty of a third degree felony.

B. Aggravated bestiality consists of a person intentionally:

(1) filming, photographing, recording, producing, printing or otherwise creating any visual or print medium depicting bestiality;

(2) coercing, manipulating or soliciting another person to engage in bestiality; or

(3) engaging in bestiality involving a minor person.

A person who commits aggravated bestiality as provided in Paragraph (1) or (2) of this subsection is guilty of a third degree felony for the first violation and is guilty of a second degree felony for a second or subsequent violation. A person who commits aggravated bestiality as provided in Paragraph (3) of this subsection is guilty of a second degree felony.

C. If a person has been convicted of a crime pursuant to this section, in addition to any other penalties, the sentencing court shall include in the judgment and sentence all of the following:

(1) that all animals under the direct care and control of the convicted person be seized and turned over to an agent of the New Mexico livestock board or to an animal control agency operated by the state or a local government or an animal shelter or other animal welfare organization designated by the animal control agency. The receiver of seized animals has the authority to determine the disposition of seized animals;

(2) that the person shall not be allowed to own, possess, reside with or exercise control over any animal or engage in any occupation or profession, whether paid or unpaid, at any place where animals are kept or cared for, for a definite period not less than three years and not more than fifteen years; provided that the time the person spent in actual confinement serving a criminal sentence shall be excluded from the calculation of the definite period; and

(3) that the person be considered a sex offender and required to register as a sex offender in accordance with the Sex Offender Registration and Notification Act.

D. If a person has been convicted of a crime pursuant to this section, in addition to criminal penalties and other penalties specified in Subsection C of this section, the sentencing court may order:

(1) that the convicted person submit to a psychological assessment and participate in appropriate counseling; and

(2) that the convicted person pay restitution to another person or organization, including a local humane officer or society; a local government animal impound facility; a law enforcement officer or conservation officer of the department of game and fish or the officer's designee, for any pecuniary loss suffered by the person or organization as a result of the crime, regardless of whether the convicted person is placed on probation.

E. A person shall not be convicted of a crime specified in this section if the person's sexual contact with an animal was coerced or manipulated."

SECTION 6. A new section of the Criminal Code, Section 30-9A-4 NMSA 1978, is enacted to read:

"30-9A-4. [NEW MATERIAL] DEOXYRIBONUCLEIC ACID SAMPLES.--Submission and handling of deoxyribonucleic acid samples by law enforcement and laboratories in bestiality cases shall be in accordance with procedures specified in Section 30-9-19 NMSA 1978."