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Victims of Crime Act

Tutorial on the crimes of stalking and harassment for New Mexico judges

Applicability and Purposes 

The Victims of Crime Act applies to stalking and aggravated stalking, §31-26-3(B)(17), along with many other specifically listed criminal offenses. §31-26-3(B)(1) through (21). Harassment is not specifically included in the Act's definition of criminal offenses. See §31-26-3(B).

As used in the Act, "victim" refers to a person "against whom a criminal offense is committed." §31-26-3(F). Additionally, it can refer to a family member or the victim's representative when the victim is a minor, incompetent or a homicide victim.

Section 31-26-3(A) specifies that "court" includes: magistrate, metropolitan, children's, and district courts, and the Court of Appeals and Supreme Court. The Act applies to the following court proceedings: "a hearing, argument or other action scheduled by and held before a court." §31-26-3(C). Given the broad definition of "court proceeding," a judge should remain aware of the Act's applicability starting from the arraignment and continuing throughout the case to sentencing and other post-conviction proceedings.

The Act is intended to assure that judges, court personnel, prosecutors and law enforcement agencies maintain an awareness of the alleged victim and work to protect the victim's rights as vigorously as the rights of the criminally accused. §31-26-2(C). The Act is also designed to assure that "the full impact of a crime is brought to the attention of a court…." §31-26-2(A). Finally, the Act also assures that victims of violent crime are "treated with dignity, respect and sensitivity at all stages of the criminal justice process…." §31-26-2(B).

The Act specifies the victim's rights with respect to the criminal justice process. The overall right of the victim is to "be treated with fairness and respect for the victim's dignity and privacy…." §31-26-4(A). Other victim's rights include to be reasonably protected from the defendant throughout the criminal justice process, §31-26-4(C), to be notified of court proceedings, §31-26-4(D), and to attend all of the public court proceedings that the defendant has the right to attend, §31-26-4(E). Still other victim's rights are spelled out in §31-26-4. Section 31-26-6 specifies that the various rights and duties set forth in the Act take effect when the alleged perpetrator is formally charged by the prosecution and remain in effect until final disposition of the court proceedings.

However, a victim may only exercise his or her rights under the Act in certain circumstances. Specifically, under §31-26-5, to exercise his or her rights the victim must:

  • report the criminal offense within five days of the occurrence or discovery, unless the district attorney determines that the victim had a reasonable excuse for failing to do so;
  • provide the district attorney with current and updated information regarding the victim's name, address and telephone number; and
  • fully cooperate with and fully respond to reasonable requests made by law enforcement agencies and district attorneys.

Responsibilities of Judges

As required by §31-26-10.1(A) of the Act, at any scheduled court proceeding the court shall inquire on the record whether the alleged victim is present to either make an oral statement or submit a written one to the court. If the alleged victim is not present, the court shall inquire on the record about whether an attempt has been made to notify the alleged victim of the proceeding. §31-26-10.1(A).

If the prosecutor cannot verify such an attempt, the court shall do either of the following:

  • reschedule the hearing, §31-26-10.1(A)(1), and order the prosecutor to notify the alleged victim of the rescheduled hearing, §31-26-10.1(A)(3); or
  • continue the hearing but reserve ruling on the matter until the alleged victim has been notified and provided the chance to make a statement, §31-26-10.1(A)(2).

However, the foregoing provisions shall not:

  • limit the prosecutor's ability to exercise prosecutorial discretion on behalf of the state, §31-26-10.1(B); or
  • require the court to continue or reschedule any proceedings if that would result in a violation of a jurisdictional rule. §31-26-10.1(C).

Section 31-26-10.1 appears to recognize the balance between a victim's right to participate and a defendant's right to have the proceedings continue in accordance with applicable rules.

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