HOUSE BILL 109

56th legislature - STATE OF NEW MEXICO - second session, 2024

INTRODUCED BY

Stefani Lord and Harlan Vincent

 

 

 

 

 

AN ACT

RELATING TO CRIME; PROVIDING THAT AGGRAVATED CRIMINAL SEXUAL PENETRATION AND CRIMINAL SEXUAL PENETRATION OF A CHILD SHALL BE PUNISHED BY DEATH; PROVIDING EXCEPTIONS; CREATING A FIRST DEGREE FELONY FOR HUMAN SEXUAL TRAFFICKING AGAINST A VICTIM UNDER EIGHTEEN YEARS OF AGE PUNISHABLE BY DEATH; ESTABLISHING A FINE FOR FIRST DEGREE FELONY CRIMINAL SEXUAL PENETRATION OF A CHILD.

 

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

     SECTION 1. Section 30-9-11 NMSA 1978 (being Laws 1975, Chapter 109, Section 2, as amended) is amended to read:

     "30-9-11. CRIMINAL SEXUAL PENETRATION.--

          A. Criminal sexual penetration is the unlawful and intentional causing of a person to engage in sexual intercourse, cunnilingus, fellatio or anal intercourse or the causing of penetration, to any extent and with any object, of the genital or anal openings of another, whether or not there is any emission.

          B. Criminal sexual penetration does not include medically indicated procedures.

          C. Aggravated criminal sexual penetration consists of all criminal sexual penetration perpetrated on a child under thirteen years of age with an intent to kill or with a depraved mind regardless of human life. Whoever commits aggravated criminal sexual penetration is guilty of a first degree felony for aggravated criminal sexual penetration.

          D. Criminal sexual penetration in the first degree consists of all criminal sexual penetration perpetrated

                [(1) on a child under thirteen years of age; or

                (2)] by the use of force or coercion that results in great bodily harm or great mental anguish to the victim.

     Whoever commits criminal sexual penetration in the first degree is guilty of a first degree felony.

          E. Criminal sexual penetration of a child in the first degree consists of all criminal sexual penetration perpetrated on a child under eighteen years of age.

     Whoever commits criminal sexual penetration of a child in the first degree is guilty of a first degree felony for criminal sexual penetration of a child; provided that whoever commits criminal sexual penetration of a child when the child is thirteen to sixteen years of age and the perpetrator is at least eighteen years of age and is at least four years older than the child and not the spouse of that child is guilty of a fourth degree felony; and provided further that whoever commits criminal sexual penetration of a child when the perpetrator is a licensed school employee, an unlicensed school employee, a school contract employee, a school health service provider or a school volunteer, and is at least eighteen years of age and is at least four years older than the child and not the spouse of that child, is guilty of a first degree felony for criminal sexual penetration of a child.

          [E.] F. Criminal sexual penetration in the second degree consists of all criminal sexual penetration perpetrated:

                [(1) by the use of force or coercion on a child thirteen to eighteen years of age;

                (2)] (1) on an inmate confined in a correctional facility or jail when the perpetrator is in a position of authority over the inmate;

                [(3)] (2) by the use of force or coercion that results in personal injury to the victim;

                [(4)] (3) by the use of force or coercion when the perpetrator is aided or abetted by one or more persons;

                [(5)] (4) in the commission of any other felony; or

                [(6)] (5) when the perpetrator is armed with a deadly weapon.

     Whoever commits criminal sexual penetration in the second degree is guilty of a second degree felony. [Whoever commits criminal sexual penetration in the second degree when the victim is a child who is thirteen to eighteen years of age is guilty of a second degree felony for a sexual offense against a child and, notwithstanding the provisions of Section 31-18-15 NMSA 1978, shall be sentenced to a minimum term of imprisonment of three years, which shall not be suspended or deferred. The imposition of a minimum, mandatory term of imprisonment pursuant to the provisions of this subsection shall not be interpreted to preclude the imposition of sentencing enhancements pursuant to the provisions of the Criminal Sentencing Act.

          F.] G. Criminal sexual penetration in the third degree consists of all criminal sexual penetration perpetrated through the use of force or coercion not otherwise specified in this section.

     Whoever commits criminal sexual penetration in the third degree is guilty of a third degree felony.

          [G. Criminal sexual penetration in the fourth degree consists of all criminal sexual penetration:

                (1) not defined in Subsections D through F of this section perpetrated on a child thirteen to sixteen years of age when the perpetrator is at least eighteen years of age and is at least four years older than the child and not the spouse of that child; or

                (2) perpetrated on a child thirteen to eighteen years of age when the perpetrator, who is a licensed school employee, an unlicensed school employee, a school contract employee, a school health service provider or a school volunteer, and who is at least eighteen years of age and is at least four years older than the child and not the spouse of that child, learns while performing services in or for a school that the child is a student in a school.

     Whoever commits criminal sexual penetration in the fourth degree is guilty of a fourth degree felony.]"

     SECTION 2. Section 30-52-1 NMSA 1978 (being Laws 2008, Chapter 17, Section 1) is amended to read:

     "30-52-1. HUMAN TRAFFICKING.--

          A. Human trafficking consists of a person knowingly:

                (1) recruiting, soliciting, enticing, transporting or obtaining by any means another person with the intent or knowledge that force, fraud or coercion will be used to subject the person to labor, services or commercial sexual activity;

                (2) recruiting, soliciting, enticing, transporting or obtaining by any means a person under the age of eighteen years with the intent or knowledge that the person will be caused to engage in commercial sexual activity; or

                (3) benefiting, financially or by receiving anything of value, from the labor, services or commercial sexual activity of another person with the knowledge that force, fraud or coercion was used to obtain the labor, services or commercial sexual activity.

          B. The attorney general and the district attorney in the county of jurisdiction have concurrent jurisdiction to enforce the provisions of this section.

          C. Except as provided in Subsection D of this section, whoever commits human trafficking is guilty of a third degree felony; except if the victim is under the age of:

                (1) sixteen, the person is guilty of a second degree felony; or

                (2) thirteen, the person is guilty of a first degree felony.

          D. Whoever commits human trafficking if the conduct is commercial sexual activity and the victim is under the age of eighteen is guilty of a first degree felony for human sexual trafficking against a victim under the age of eighteen.

          [D.] E. Prosecution pursuant to this section shall not prevent prosecution pursuant to any other provision of the law when the conduct also constitutes a violation of that other provision.

          [E.] F. In a prosecution pursuant to this section, a human trafficking victim shall not be charged with accessory to the crime of human trafficking.

          [F.] G. A person convicted of human trafficking shall, in addition to any other punishment, be ordered to make restitution to the victim for the gross income or value of the victim's labor or services and any other actual damages in accordance with Section 31-17-1 NMSA 1978.

          [G.] H. As used in this section:

                (1) "coercion" means:

                     (a) causing or threatening to cause harm to any person;

                     (b) using or threatening to use physical force against any person;

                     (c) abusing or threatening to abuse the law or legal process;

                     (d) threatening to report the immigration status of any person to governmental authorities; or

                     (e) knowingly destroying, concealing, removing, confiscating or retaining any actual or purported government document of any person; and

                (2) "commercial sexual activity" means any sexual act or sexually explicit exhibition for which anything of value is given, promised to or received by any person."

     SECTION 3. Section 31-18-15 NMSA 1978 (being Laws 1977, Chapter 216, Section 4, as amended) is amended to read:

     "31-18-15. SENTENCING AUTHORITY--CAPITAL FELONIES--NONCAPITAL FELONIES--BASIC SENTENCES AND FINES--PAROLE AUTHORITY--MERITORIOUS DEDUCTIONS.--

          A. As used in a statute that establishes a noncapital felony, the following defined felony classifications and associated basic sentences of imprisonment are as follows:

FELONY CLASSIFICATION           BASIC SENTENCE

first degree felony

resulting in the death 

of a child                      life imprisonment

first degree felony for

aggravated criminal sexual

penetration                     [life imprisonment] death

first degree felony             eighteen years imprisonment

first degree felony for

criminal sexual penetration

of a child                      death

first degree felony for

human sexual trafficking

against a victim under

eighteen years of age           death

second degree felony

resulting in the death of

a human being                   fifteen years imprisonment

second degree felony for a

sexual offense against a

child                           fifteen years imprisonment

second degree felony for

sexual exploitation of

children                        twelve years imprisonment

second degree felony            nine years imprisonment

third degree felony resulting

in the death of a human being   six years imprisonment

third degree felony for a

sexual offense against a

child                           six years imprisonment

third degree felony for sexual

exploitation of children        eleven years imprisonment

third degree felony             three years imprisonment

fourth degree felony for

sexual exploitation of

children                        ten years imprisonment

fourth degree felony            eighteen months imprisonment.

          B. The appropriate basic sentence of imprisonment shall be imposed upon a person convicted and sentenced pursuant to Subsection A of this section, unless the court alters the sentence pursuant to the provisions of the Criminal Sentencing Act.

          C. A period of parole shall be imposed only for felony convictions wherein a person is sentenced to imprisonment of more than one year, unless the parties to a proceeding agree that a period of parole should be imposed. If a period of parole is imposed, the court shall include in the judgment and sentence of each person convicted and sentenced to imprisonment in a corrections facility designated by the corrections department authority for a period of parole to be served in accordance with the provisions of Section 31-21-10 NMSA 1978 after the completion of any actual time of imprisonment and authority to require, as a condition of parole, the payment of the costs of parole services and reimbursement to a law enforcement agency or local crime stopper program in accordance with the provisions of that section. If imposed, the period of parole shall be deemed to be part of the sentence of the convicted person in addition to the basic sentence imposed pursuant to Subsection A of this section together with alterations, if any, pursuant to the provisions of the Criminal Sentencing Act.

          D. When a court imposes a sentence of imprisonment pursuant to the provisions of Section 31-18-15.1, 31-18-16 or 31-18-17 NMSA 1978 and suspends or defers the basic sentence of imprisonment provided pursuant to the provisions of Subsection A of this section, the period of parole shall be served in accordance with the provisions of Section 31-21-10 NMSA 1978 for the degree of felony for the basic sentence for which the inmate was convicted. For the purpose of designating a period of parole, a court shall not consider that the basic sentence of imprisonment was suspended or deferred and that the inmate served a period of imprisonment pursuant to the provisions of the Criminal Sentencing Act.

          E. The court may, in addition to the imposition of a basic sentence of imprisonment, impose a fine not to exceed:

                (1) for a first degree felony resulting in the death of a child, seventeen thousand five hundred dollars ($17,500);

                (2) for a first degree felony for aggravated criminal sexual penetration, [seventeen thousand five hundred dollars ($17,500)] one hundred thousand dollars ($100,000);

                (3) for a first degree felony, fifteen thousand dollars ($15,000);

                (4) for a first degree felony for criminal sexual penetration of a child, one hundred thousand dollars ($100,000);

                [(4)] (5) for a second degree felony resulting in the death of a human being, twelve thousand five hundred dollars ($12,500);

                [(5)] (6) for a second degree felony for a sexual offense against a child, twelve thousand five hundred dollars ($12,500);

                [(6)] (7) for a second degree felony for sexual exploitation of children, five thousand dollars ($5,000);

                [(7)] (8) for a second degree felony, ten thousand dollars ($10,000);

                [(8)] (9) for a third degree felony resulting in the death of a human being, five thousand dollars ($5,000);

                [(9)] (10) for a third degree felony for a sexual offense against a child, five thousand dollars ($5,000);

                [(10)] (11) for a third degree felony for sexual exploitation of children, five thousand dollars ($5,000);

                [(11)] (12) for a third or fourth degree felony, five thousand dollars ($5,000); or

                [(12)] (13) for a fourth degree felony for sexual exploitation of children, five thousand dollars ($5,000).

          F. When the court imposes a sentence of imprisonment for a felony offense, the court shall indicate whether or not the offense is a serious violent offense as defined in Section 33-2-34 NMSA 1978. The court shall inform an offender that the offender's sentence of imprisonment is subject to the provisions of Sections 33-2-34, 33-2-36, 33-2-37 and 33-2-38 NMSA 1978. If the court fails to inform an offender that the offender's sentence is subject to those provisions or if the court provides the offender with erroneous information regarding those provisions, the failure to inform or the error shall not provide a basis for a writ of habeas corpus.

          G. No later than October 31 of each year, the

New Mexico sentencing commission shall provide a written report to the secretary of corrections, all New Mexico criminal court judges, the administrative office of the district attorneys and the chief public defender. The report shall specify the average reduction in the sentence of imprisonment for serious violent offenses and nonviolent offenses, as defined in Section 33-2-34 NMSA 1978, due to meritorious deductions earned by prisoners during the previous fiscal year pursuant to the provisions of Sections 33-2-34, 33-2-36, 33-2-37 and 33-2-38 NMSA 1978. The corrections department shall allow the commission access to documents used by the department to determine earned meritorious deductions for prisoners."

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