As used in Sections 30-9-10 through 30-9-16 NMSA 1978:
A. "force or coercion" means:
(1) the use of physical force or physical violence;
(2) the use of threats to use physical violence or physical force against the victim or another when the victim believes that there is a present ability to execute the threats;
(3) the use of threats, including threats of physical punishment, kidnapping, extortion or retaliation directed against the victim or another when the victim believes that there is an ability to execute the threats;
(4) the perpetration of criminal sexual penetration or criminal sexual contact when the perpetrator knows or has reason to know that the victim is unconscious, asleep or otherwise physically helpless or suffers from a mental condition that renders the victim incapable of understanding the nature or consequences of the act; or
(5) the perpetration of criminal sexual penetration or criminal sexual contact by a psychotherapist on his 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.
Physical or verbal resistance of the victim is not an element of force or coercion;
B. "great mental anguish" means psychological or emotional damage that requires psychiatric or psychological treatment or care, either on an inpatient or outpatient basis, and is characterized by extreme behavioral change or severe physical symptoms;
C. "patient" means a person who seeks or obtains psychotherapy;
D. "personal injury" means bodily injury to a lesser degree than great bodily harm and includes, but is not limited to, disfigurement, mental anguish, chronic or recurrent pain, pregnancy or disease or injury to a sexual or reproductive organ;
E. "position of authority" means that position occupied by a parent, relative, household member, teacher, employer or other person who, by reason of that position, is able to exercise undue influence over a child;
F. "psychotherapist" means a person who is or purports to be a:
(1) licensed physician who practices psychotherapy;
(2) licensed psychologist;
(3) licensed social worker;
(4) licensed nurse;
(5) counselor;
(6) substance abuse counselor;
(7) psychiatric technician;
(8) mental health worker;
(9) marriage and family therapist;
(10) hypnotherapist; or
(11) minister, priest, rabbi or other similar functionary of a religious organization acting in his role as a pastoral counselor;
G. "psychotherapy" means professional treatment or assessment of a mental or an emotional illness, symptom or condition;
H. "school" means any public or private school, including the New Mexico military institute, the New Mexico school for the blind and visually impaired, the New Mexico school for the deaf, the New Mexico boys' school, the New Mexico youth diagnostic and development center, the Los Lunas medical center, the Fort Stanton hospital, the New Mexico behavioral health institute at Las Vegas and the Carrie Tingley crippled children's hospital, that offers a program of instruction designed to educate a person in a particular place, manner and subject area. "School" does not include a college or university; and
I. "spouse" means a legal husband or wife, unless the couple is living apart or either husband or wife has filed for separate maintenance or divorce.
History: 1953 Comp., § 40A-9-20, enacted by Laws 1975, ch. 109, § 1; 1979, ch. 28, § 1; 1993, ch. 177, § 1; 2001, ch. 161, § 1; 2005, ch. 313, § 7.
ANNOTATIONSThe 2005 amendment, effective June 17, 2005, changed the name of the New Mexico school for the visually handicapped to the New Mexico school for the blind and visually impaired and changed the name of the Las Vegas medical center to the New Mexico behavioral institute at Las Vegas in Subsection H.
The 2001 amendment, effective July 1, 2001, added Subsection H and redesignated former Subsection H as Subsection I.
The 1993 amendment, effective July 1, 1993, in Subsection A, substituted "contact" for "conduct" near the beginning of Paragraph (4), redesignated the former second sentence of Paragraph (4) as the second undesignated paragraph of the subsection, added Paragraph (5), making a related grammatical change, and made stylistic changes; and added present Subsections C, F, and G, making related subsection redesignations.
Force or coercion. Where defendant grabbed the victim's breasts, causing pain and discomfort and squeezed the victim's breasts so tightly that the victim was unable to breath, became dizzy, and was unable to escape from defendant's grip, there was sufficient evidence to support a finding that defendant used force to sexually assault the victim. State v. Huff, 1998-NMCA-075, 125 N.M. 254, 960 P.2d 342, cert. denied, 125 N.M. 146, 958 P.2d 104.
Mental anguish. Expert testimony concerning the victim's mood swings from depression to anger, the victim's emotional inability to re-enroll in school, indications that the victim had started drinking more to block out what happened, and the victim's plan to move in order to avoid bad memories and embarrassment was sufficient evidence to establish the element of mental anguish. State v. Barraza, 1990-NMCA-026, 110 N.M. 45, 791 P.2d 799, cert. denied, 109 N.M. 704, 789 P.2d 1271.
Sufficient evidence of great mental anguish. — Where defendant was convicted of first-degree criminal sexual penetration (CSP), and where defendant claimed that the state failed to establish that the victim suffered great mental anguish as a result of the incident and that the evidence is therefore insufficient to support his conviction for first-degree CSP, evidence that the victim was over seventy years of age, that she moved to another state to live with her daughter because she felt unable to live alone, that she experienced constant flashbacks, and as a result had trouble concentrating and was unable to drive for a period of time, was sufficient to support a conclusion that the victim suffered great mental anguish as a result of the incident. State v. Sena, 2018-NMCA-037, rev'd in part by 2020-NMSC-011.
Position of authority. Where defendant was considered by the victim as a father figure; defendant acted as a father figure in the presence of other people; defendant did chores at the request of the victim's parent; defendant was entrusted by the victim's parent to act as the victim's guardian at times; defendant assumed the role of employer by allowing the victim to earn money at defendant's place of business; and defendant was the trusted friend of the victim's parent which allowed defendant to be alone with the victim when the victim spent the night at defendant's house or went to the dump in defendant's truck, the evidence was sufficient to support a finding that defendant exercised a position of authority over the victim. State v. Gipson, 2009-NMCA-053, 146 N.M. 202, 207 P.3d 1179.
"Position of authority" interpreted. — In 30-9-10(E) NMSA 1978, the legislature has designated certain relationships with a child that represent a "position of authority," and the language "who, by reason of that position, is able to exercise undue influence over a child" does not pertain to each of the types of position of authority listed in the definition. Under the definition of "position of authority", a household member is presumed to be able to exercise undue influence over a child such that additional proof concerning a perpetrator's use or possession of such authority is not required. State v. Erwin, 2016-NMCA-032, cert. denied.
Where defendant, who was charged with criminal sexual contact of a child thirteen to eighteen years of age, did not dispute the evidence that he was a household member, but claimed that the state failed to prove that he used this position of authority to coerce the child to submit to sexual contact, the state was not required to prove that defendant, by reason of his position as a household member, was able to exercise undue influence over the child, because the legislature has designated certain relationships with a child, including a household member, that represent a position of authority for purposes of prosecution under 30-9-13 NMSA 1978. State v. Erwin, 2016-NMCA-032, cert. denied.
Phrase "unless the couple is living apart" is not void for vagueness when construed and applied in the ordinary sense to mean a suspension of the marital relationship. State v. Brecheisen, 1984-NMCA-011, 101 N.M. 38, 677 P.2d 1074, cert. denied, 101 N.M. 11, 677 P.2d 624.
Evidence of living apart. — Evidence supported finding that defendant and his wife were living apart at the time of an alleged attack by defendant upon his wife, where the wife testified that she felt she was living apart from defendant at the time of the attack, and there was evidence of the couple's physical separation and the defendant's securing other housing and paying one month's rent. Brecheisen v. Mondragon, 833 F.2d 238 (10th Cir. 1987), cert. denied, 485 U.S. 1011, 108 S. Ct. 1479, 99 L. Ed. 2d 707 (1988).
Consensual sex between therapist and adult patient. — A defendant's conduct did not constitute the crimes of second or third degree criminal sexual penetration because consensual sex between a therapist and his adult patient is not a crime. State v. Leiding, 1991-NMCA-043, 112 N.M. 143, 812 P.2d 797, cert. denied, 112 N.M. 77, 811 P.2d 575.
Law reviews. — For symposium, "The Impact of the Equal Rights Amendment on the New Mexico Criminal Code," see 3 N.M.L. Rev. 106 (1973).
For article, New Mexico Joins the Twentieth Century: The Repeal of the Marital Rape Exemption, see 22 N.M.L. Rev. 551 (1992).
Am. Jur. 2d, A.L.R. and C.J.S. references. — Rape or similar offense based on intercourse with woman who is allegedly mentally deficient, 31 A.L.R.3d 1227.
Criminal responsibility for physical measures undertaken in connection with treatment of mentally disordered patient, 99 A.L.R.3d 854.
Necessity or permissibility of mental examination to determine competency or credibility of complainant in sexual offense prosecution, 45 A.L.R.4th 310.
Conviction of rape or related sexual offenses on basis of intercourse accomplished under the pretext of, or in the course of, medical treatment, 65 A.L.R.4th 1064.