This chapter will discuss allegations of abuse and neglect of a child which result in a criminal prosecution against the alleged perpetrator.  The chapter will lay out the various criminal offenses and their elements as well as discuss applicable case law and other matters related to criminal prosecutions where the alleged victim is a child.
 
34.1 Reporting Requirement
Every person, including a member of the clergy who has information that is not privileged as a matter of law, who knows or has a reasonable suspicion that a child is abused or neglected is required to report the matter immediately to local law enforcement or CYFD.  For an Indian child residing in Indian country, the report must be made to tribal law enforcement or a social service agency.  §32A-4-3(A).  Failure to report is a misdemeanor.  §32A-4-3(F).  Cross-reporting is required between law enforcement and CYFD.  §32A-4-3(B).

For reporting purposes, the terms “abused” and “neglected” are defined as set forth in the Abuse and Neglect Act, §§32A-4-1 to 32A-4-34.  These are the definitions that apply in civil abuse and neglect proceedings rather than in criminal cases.  See Handbook §15.5.3.   The definitions applicable to criminal prosecutions alleging abuse or neglect are discussed later in this chapter.    

Obstruction of the reporting or investigation of alleged child abuse or neglect is a misdemeanor offense.  §30-6-4.  “Obstruction” is defined as knowingly inhibiting, preventing, obstructing or intimidating another from reporting child abuse or neglect (including sexual abuse), or knowingly obstructing, delaying, interfering with or denying access to a law enforcement officer or child protective services social worker in the investigation of a report of child abuse or sexual abuse.  §30-6-4(A)-(B). 

Parental permission is not required for a child to be interviewed by law enforcement, employees of the district attorney’s office, employees of CYFD, or investigative interviewers from a children’s safehouse.  §32A-4-5(C).  However, before interviewing a child, CYFD must notify the child’s parent or guardian, unless it determines that notification would adversely affect the safety of the child about whom the report has been made or compromise the investigation.  §32A-4-5(F).

34.2   Statute of Limitations
The standard statute of limitations, §30-1-8, sets forth the general time requirements for initiating a criminal prosecution.  A special statute of limitations for some offenses against children, §30-1-9.1, provides that, for any crime of child abuse or abandonment, criminal sexual penetration or criminal sexual contact of a minor, the time period for commencing prosecution does not begin to run until the victim turns 18 or the crime is reported to law enforcement, whichever occurs first.

34.3   Child Abuse

34.3.1   Statutory Elements
Under §30-6-1(D), “abuse of a child” consists of a person knowingly, intentionally or negligently, and without justifiable cause, causing or permitting a child to be:

• placed in a situation that may endanger the child’s life or health;
• tortured, cruelly confined, or cruelly punished; or
• exposed to the inclemency of the weather.

Under the law, a defendant can be charged and convicted of child abuse based on acts on his or her part, as well as failing to act or acting without regard to the consequences.  Different jury instructions are given depending on whether the defendant is alleged to have intentionally or negligently caused child abuse or to have negligently permitted abuse to occur. 

In the first instance, intentional or negligent child abuse, the elements are that:

• The defendant caused the child to be:
• placed in a situation which endangered the child’s life or health;
• exposed to inclement weather; or
• tortured, cruelly confined, or cruelly punished; and
• The defendant acted intentionally or with reckless disregard and without justification. See UJI 14-602 and 14-604.

In the second instance, negligently permitting child abuse to occur, the elements are that:

• The defendant permitted the child:
• to be placed in a situation which endangered the child’s life or health;
• to be exposed to inclement weather; or
• to be tortured, cruelly confined or cruelly punished; and
• The defendant acted with reckless disregard and without justification. 

See UJI 14-603 and 14-605.

In all of the foregoing instructions on child abuse, the concept of criminal negligence is incorporated in the phrase “reckless disregard,” which is explained in the jury instructions.  Specifically, to conclude that the defendant acted with reckless disregard, the trier of fact must find that:

• the defendant knew or should have known that his or her conduct created a substantial and foreseeable risk;
• the defendant disregarded that risk; and
• the defendant was wholly indifferent to the consequences of the conduct and to the welfare and safety of the child. 

See UJI 14-602 to 14-606.

The legislature has seen fit to adopt a specific form of child abuse relating to the exposure of a child to items relating to the manufacture of controlled substances.  Evidence demonstrating that the defendant has knowingly, intentionally or negligently allowed a child to enter or remain in a motor vehicle, building or other premises containing chemicals and equipment used or intended for use in the manufacture of a controlled substance shall be deemed prima facie evidence of child abuse.  §30-6-1(I).

If abuse of a child, whether intentional or negligent, results in death or great bodily harm to the child, the crime is a first degree felony, although whoever commits intentional abuse of a child less than twelve years of age that results in death is guilty of a first degree felony resulting in the death of a child.  The basic sentence of imprisonment for a first degree felony is 18 years but the sentence for a first degree felony resulting in the death of a child is life imprisonment.  §30-6-1(H); §31-18-15(A).  A person serving a life sentence under this provision is not eligible for parole until 30 years of the sentence has been served.

If the abuse did not result in death or great bodily harm, a first offense is a third degree felony, §30-6-1(E), with a basic sentence of 3 years.   A second or subsequent offense of child abuse not resulting in death or great bodily harm is a second degree felony, §30-6-1(E), with a basic sentence of 9 years.  §31-18-15(A).
 
34.3.2   Definitions Relating to Child Abuse
Important definitions in criminal child abuse prosecutions include:

• Great bodily harm:  Great bodily harm is defined as “an injury to the person which creates a high probability of death; or which causes serious disfigurement; or which results in permanent or protracted loss or impairment of the function of any member or organ of the body.”  §30-1-12(A).  See State v. Bell, 90 N.M. 134, 138 (1977) (great bodily harm does not have to be proven by medical experts exclusively); State v. Ortega, 77 N.M. 312, 315 (1966) (great bodily harm is a question of fact for the jury; tattooing a victim can be great bodily harm); State v. Hollowell, 80 N.M. 756, 760 (Ct. App. 1969) (choking creates a high probability of death and fits within “great bodily harm”).    

• Negligence:  In Santillanes v. State, 115 N.M. 215 (1993), the court changed the standard of negligence to one of “criminal negligence.”  To find that negligent child abuse occurred, the fact finder must find that the defendant knew or should have known of the danger involved and acted with a reckless disregard for the safety or health of the child. 

In State v. Magby, 1998-NMSC-042, 126 N.M. 361, overruled on other grounds, State v. Mascarenas, 2000-NMSC-017, 129 N.M. 230, the court further clarified the criminal negligence standard and concluded that the trial court’s refusal to give an instruction defining “reckless disregard” was improper.  This resulted in a revised jury instruction on negligently causing child abuse as follows:  the defendant knew or should have known of the danger to the child, and known or should have known that his “conduct created a substantial and foreseeable risk, the defendant disregarded that risk and the defendant was wholly indifferent to the consequences of the conduct and to the welfare and safety of” the child.  UJI 14-602. 

The Magby requirements have also been incorporated into the instruction for negligently permitting child abuse.  See UJI 14-603.  Negligent child abuse does not require proof that the defendant consciously disregarded the risk to the child.  Rather, the defendant “need only have ‘reckless disregard’ to the consequences [of his or her conduct] in the face of substantial and foreseeable danger.”  State v. Schoonmaker, 2005-NMCA-012, ¶17, 136 N.M. 749, cert. granted, 2005-NMCERT-1, 137 N.M. 17.

34.3.3   Case Law on Child Abuse
As the following cases illustrate, the New Mexico appellate courts have decided that certain actions fall within the ambit of child abuse, while other actions do not.

Causing or Permitting Child Abuse:

• State v. Crislip, 110 N.M. 412, 418 (Ct. App. 1990).  Negligently permitting child abuse encompasses passively consenting, i.e. permitting abuse through inaction, as well as active consent.  See also State v. Williams, 100 N.M. 322, 324 (Ct. App. 1983), wherein the court rejected defendant’s argument that she could not be guilty of negligently permitting child abuse to occur on the basis that she “could not foresee the occurrence” because the child had old and new injuries, the defendant knew of her husband’s violence and use of drugs, and she allowed child to stay in that environment.  (Note that Crislip and Williams were partially overruled by Santillanes, discussed in §34.3.2 above, to the extent they used a civil negligence standard.  110 N.M. at 225, n.7.)

• State v. Leal, 104 N.M. 506, 509 (Ct. App. 1986).  The child abuse statute prohibits two separate acts:  causing or permitting child abuse.  Since abuse will frequently occur in the privacy of the home, charging a defendant with “causing or permitting” may enable the State to prosecute where it is not clear who actually inflicted the abuse, but where the evidence shows beyond a reasonable doubt that the defendant either caused the abuse or permitted it to occur.

• State v. Adams, 89 N.M. 737, 738 (Ct. App. 1976).  Failure to take action in connection with abuse can be criminal child abuse.  Parents have a duty to care for their child, and knowing about abuse and doing nothing to protect the child may be child abuse.  The court allowed testimony regarding child abuse syndrome as an identifiable medically recognized term involving evidence of old and new trauma, even if the particular trauma did not result in the child’s death.  (Note that Adams was partially overruled by the Santillanes case, discussed in §34.3.2 above, to the extent the court used a civil negligence standard.  Santillanes, 110 N.M. at 225, n.7.) 

Endangering a Child:

• State v. Jensen, 2006-NMSC-045, 140 N.M. 416.  Defendant was convicted of endangering a 15-year-old child who frequently visited the defendant in the defendant’s home, where conditions were notably unhealthy: dog vomit and feces, rotten food, and rat dropping were present throughout the house, including on the stove top, where defendant prepared food for the child.  In addition, the defendant provided the child with alcohol on a daily basis for approximately two weeks, allowing the child to become so intoxicated that he vomited on at least one occasion.  Finally, the defendant provided the child with access to online pornography.  The Court of Appeals overturned defendant’s conviction, concluding that the 15-year-old child was old enough to simply avoid the defendant and thereby protect himself from harm.  The Supreme Court disagreed, emphasizing that the “child’s failure to avoid Defendant does not exonerate Defendant as a matter of law” and concluding that the combination of facts—filth, provision of alcohol, and access to pornography—were sufficient to prove child endangerment.  Id. ¶15.

• State v. Graham, 2005-NMSC-004, 137 N.M. 197.  The presence of marijuana in the house of a drug dealer was sufficient to support a conviction of child abuse when a marijuana roach was found on the living room floor, a marijuana bud was found in a child’s crib, a plastic sandwich bag with a small amount of marijuana was found on a table, and when the children were present in the immediate vicinity of the marijuana and the marijuana was accessible to them.  The Supreme Court held that the evidence was sufficient to find that the defendant had placed the children “in a situation that may have endangered their life or health and did so with a reckless disregard.”  Id. ¶¶8, 14.

• State v. McGruder, 1997-NMSC-023, 123 N.M. 302.  Defendant went to victim’s home, shot the live-in boyfriend of the victim’s mother in the head, and then held a gun to the mother’s head, threatening to kill her.  The child victim was behind the mother during the incident, crying.  The child was physically uninjured but the appeals court affirmed the child abuse conviction because “[t]he jury was entitled to view such conduct as endangering either the life or health of the child.”  Id. ¶46.

• State v. Clemonts, 2006-NMCA-031.  Defendant led police on a low-speed chase, then ran from his car and had to be subdued by a police officer.  The Court of Appeals held that the misdemeanor traffic offenses Defendant committed did not pose a substantial risk to the children’s lives or health as passengers in his car.  The children were not in any direct line of danger, so there was no child abuse.  Id. ¶17. 
• State v. Watchman, 2005-NMCA-125, 138 N.M. 488.  Defendant’s conviction of negligent child abuse was supported by sufficient evidence that Defendant acted with reckless disregard for the safety of her 21-month-old child when she left the child unattended in an unlocked pickup truck for at least thirty minutes, the child had easy access to numerous bottles of hard liquor left in the pickup truck, the pickup was parked at a crowded bar in the middle of a Saturday night, and the defendant drove to the bar in an intoxicated condition with the child in the truck. Id.   See also State v. Castaeda, 2001-NMCA-052, ¶¶21, 22, 130 N.M. 679 (upholding a conviction of criminally negligent child abuse when the defendant drove in an intoxicated condition with her children in the car).

• State v. Trujillo, 2002-NMCA-100, 132 N.M. 649.  Defendant’s eight year old daughter saw him hitting her mother but was ordered back to her room:  “Get your little f---ing ass back to bed because I don’t want to have you see me kill your mother.”  The Court of Appeals reversed defendant’s conviction for child abuse, determining that there was insufficient evidence of a reasonable probability or possibility that the daughter’s emotional or physical health was endangered.  Id. ¶20.  The court distinguished Ungarten and McGruder as being cases in which the children were situated directly in the line of physical danger from a lethal weapon, which was pointed in their direction during a heated exchange.  Trujillo, ¶16.

• State v. Roybal, 115 N.M. 27, 34 (Ct. App. 1992).  Child abuse was not proven where defendant was involved in a drug transaction approximately 10 to 15 feet away from a vehicle where the defendant’s daughter was sitting.  The transaction was observed by armed police officers who intervened.  The court found that the child was not put in danger and therefore the charge was not supported by substantial evidence. 

• State v. Ungarten, 115 N.M. 607, 609-10 (Ct. App. 1993).  Defendant, a neighbor of the child victim, gestured toward the victim with a knife, waving the knife in a threatening manner. The child was not physically harmed.  A child does not have to suffer a physical injury for the defendant to be convicted of child abuse.  The court opined that the legislature’s intent was to require “a reasonable probability or possibility” that the child would be endangered.

Who May Commit Child Abuse:

• State v. Reed, 2005-NMSC-031, 138 N.M. 365.  Defendant, who was 18 years old, shot and killed his 14-year-old friend.  The Supreme Court held that the legislature has not indicated that the statute for negligent child abuse resulting in death is restricted to persons having a special relationship with the child, such as a parent or guardian.  Id. ¶50.  Therefore, it rejected Defendant’s argument that as a friend and contemporary of the deceased he could not be convicted of negligent child abuse resulting in death.

• State v. Lujan, 103 N.M. 667, 670-71 (Ct. App. 1985).  Defendant and his companions harassed victim’s parents outside a store and then followed them in their vehicle.  During the pursuit, someone from defendant’s vehicle threw beer bottles and cans into the victim’s pickup, one of which struck a 7 month-old infant in the head.  Defendant then hit the victim’s car, forcing it to stop.  The passengers in defendant’s vehicle attacked the child’s parents.  For the defendant to be convicted of child abuse, he does not have to be a parent of the child. See also State v. Fulton, 99 N.M. 348 (Ct. App. 1983) (stepfather guilty of child abuse towards stepchildren).

Conduct That Is Not Criminal:

• State v. Martinez, 2006-NMCA-068, ¶¶7-8, cert. quashed, 2007-NMCERT-005.  When deciding whether the State could prosecute a mother for child abuse when the mother used cocaine during her pregnancy, the Court of Appeals held that the Legislature did not intend for a viable fetus to be included within the statutory definition of a child for the purposes of the child abuse statute.
• State v. Lefevre, 2005-NMCA-101, 138 N.M. 174.  Defendant was prosecuted for battery for using physical force to discipline his child.  The Court of Appeals held that a parent has a privilege to use moderate or reasonable physical force, without criminal liability, when engaged in the discipline of his or her child.  Id. ¶16.  Discipline involves controlling behavior and correcting misbehavior for the betterment and welfare of the child.  An isolated instance of such force that results in nothing more than transient pain or temporary marks or bruises is protected under this parental discipline privilege.  Id. ¶21.  

34.4   Child Abandonment
Under §30-6-1(B), the statutory elements of “abandonment of a child” are:

• A parent, guardian or custodian of the child
• Intentionally leaving or abandoning the child
• Under circumstances whereby the child may or does suffer neglect.

“Neglect” means that a child is without proper parental care and control of subsistence, education, medical or other care or control necessary for his well-being because of: 

• the faults or habits of the child’s parents, guardian or custodian; or
• their neglect or refusal to provide these when able to do so.  §30-6-1(A)(2).

If child abandonment results in death or great bodily harm to the child, the crime is a second degree felony, punishable by nine years imprisonment.  §31-18-15(A).  If it does not result in death or great bodily harm, the crime is a misdemeanor.  §30-6-1(B); §31-18-15(A).

A parent, guardian or custodian leaving an infant less than 90 days old at a hospital in compliance with the Safe Haven for Infants Act may not be prosecuted for abandonment of a child, §30-6-1(C), although that person may be prosecuted for abuse for actions of the person occurring before the infant was left at the hospital.  §30-6-1(J). 

Although the Safe Haven for Infants Act, §§24-22-1 et seq., was passed in 2001 “to promote the safety of infants and to immunize a parent from criminal prosecution for leaving an infant, ninety days of age or less, at a hospital[,]” it does not protect the parent from civil abuse and neglect proceedings.  §24-22-3(A).  Indeed, when an infant is left at a hospital, CYFD is deemed to have emergency custody of the infant and is required to conduct an immediate abuse and neglect investigation.  §24-22-5.

34.5   Sexual Abuse

34.5.1   Criminal Sexual Penetration
Under §30-9-11(A), the statutory elements of criminal sexual penetration are:

• Unlawfully and intentionally causing 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.

Criminal sexual penetration in the first degree is a first-degree felony that consists of all criminal sexual penetration perpetrated on a child under thirteen years of age or by the use of force or coercion that results in great bodily hard or great mental anguish to the victim.  §30-9-11(D).  The basic sentence of imprisonment is eighteen years.  §31-18-15(A).

A first degree felony, aggravated criminal sexual penetration is all criminal sexual penetration perpetrated on a child under nine years of age with an intent to kill or with a depraved mind regardless of human life.  §30-9-11(C).  The offense carries a sentence of life imprisonment.  §31-18-15(2).

Second degree criminal sexual penetration is an offense perpetrated on a child age 13 to 18 by the use of force or coercion.  §30-9-11(E).     For second degree criminal sexual penetration, where the victim is a child who is thirteen to eighteen years of age, the defendant must be sentenced to a minimum term of three years, which may not be suspended or deferred.  §30-9-11(E).  

Third degree criminal sexual penetration consists of all criminal sexual penetration perpetrated through the use of force or coercion which is not otherwise specified in §30-9-11.  §30-9-11(F).

Fourth degree criminal sexual penetration consists of:

• all criminal sexual penetration either not previously defined under §30-9-11; and
• 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 child’s spouse;

or

• perpetrated on a child thirteen to eighteen years of age, when the perpetrator is either
• a licensed or unlicensed school employee;
• a school contract employee;
• a school health services provider; or
• a school volunteer; and
• who is at least eighteen years of age and at least four years older than the child; and
• not the child’s spouse; and
• learns while performing services in or for the school that the child is a student.  §30-9-11(G)(1)-(2).

In all cases, the State must prove that the penetration was unlawful.  Criminal sexual penetration does not include medically indicated procedures, §30-9-11(B), or reasonable parental care.  See State v. Osborne, 111 N.M. 654 (1991), and the discussion of unlawfulness in §34.5.2 below.  In prosecutions for criminal sexual penetration, the testimony of the victim need not be corroborated and the lack of corroboration has no bearing on the weight the fact finder gives to the testimony.  State v. Nichols, 2006-NMCA-017, ¶10, 139 N.M. 72. 

Note that fellatio only requires that the mouth or tongue touch the penis, not that the penis enter the mouth of the other person.   Furthermore, cunnilingus does not require that the tongue go inside or penetrate the vagina, only that the female sex organ be touched on the edge or inside with the lips or tongue. See State v. Orona, 97 N.M. 232 (1982); UJI 14-982.

34.5.2   Criminal Sexual Contact of a Minor
Under §30-9-13(A), the statutory elements of criminal sexual contact of a minor are:

• The unlawful and intentional touching of or applying force to the intimate parts of a minor, or

• The unlawful and intentional causing of a minor to touch one’s intimate parts.

“Intimate parts” means the primary genital area, groin, buttocks, anus or breast.  Id.  “Primary genital area” is defined in Criminal UJI 14-981.

Second degree criminal sexual contact of a minor consists of all criminal sexual contact of the unclothed intimate parts of a minor perpetrated:

• on a child under thirteen years of age, or
• on a child thirteen to eighteen years of age when: 
  • the perpetrator is in a position of authority over the child and uses that authority to coerce the child to submit; or
  • the perpetrator uses force or coercion that results in personal injury to the child; or
  • the perpetrator uses force or coercion and is aided or abetted by one or more persons; or
  • the perpetrator is armed with a deadly weapon.  §30-9-13(B). 

Anyone convicted of second degree criminal sexual contact against a child must be sentenced to a minimum term of imprisonment of three years, which may not be suspended or deferred.  Id.

Third degree criminal sexual contact of a minor consists of all criminal sexual contact of a minor when either:

• The minor is under age 13; or
• The minor is age 13 up to 18 and the perpetrator:
• Is in a position of authority over the minor and uses this authority to coerce the minor to submit.  See State v. Orosco, 113 N.M. 780, 786-787 (1992); State v. Gardner, 2003-NMCA-107, 134 N.M. 294; State v. Trevino, 113 N.M. 804, 806-807 (Ct. App. 1991);
• Uses force or coercion that results in personal injury to the child;
• Uses force or coercion and is aided or abetted by one or more persons; or
• Is armed with a deadly weapon.  §30-9-13(C).

A person is in a "position of authority" if that person “is 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.” §30-9-10(E). 

“Force or coercion” is defined in §30-9-10(A) to mean:

• the use of physical force or physical violence;
• 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;
• 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;
• 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
• 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.  §30-9-10(A) (emphasis added).

Criminal sexual contact in the third degree is a third degree felony for a sexual offense against a child, for which the basic sentence of imprisonment is six years.  §30-9-13(C); §31-18-15(A).

Criminal sexual contact of a minor in the fourth degree includes all criminal sexual contact that is not defined above.  It occurs when:

• The child is age 13 up to 18; and
• The criminal sexual contact is perpetrated with force or coercion.  §30-9-13(D). Force or coercion is defined in §30-9-10(A) (see above) and does not require as an element of the crime that the victim physically or verbally resisted.

Criminal sexual contact of a minor in the fourth degree also occurs when:

• the child is age 13 to 18;
• 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
• the perpetrator is at least 18 years of age and is at least four years older than the child, and not the spouse of the child;  and
• the perpetrator learns that the child is a student in a school while performing services in or for a school.  §30-9-13(D).

The basic sentence for fourth degree criminal sexual contact of a minor is eighteen months imprisonment.  §31-18-15(A).

The State is required to prove unlawfulness as an element of the offense of criminal sexual contact of a minor.  State v. Osborne, 111 N.M. 654 (1991); State v. Landers, 115 N.M. 514 (Ct. App. 1992).  For the touching to have been unlawful, it must have been done with the intent to arouse or gratify sexual desire or otherwise to intrude upon the bodily integrity or personal safety of the victim.  If the touching was for purposes of reasonable medical care or nonabusive parental or custodial care, it is not unlawful.   Osborne, 111 N.M. at 660-661; UJI 14-984.  The court in State v. Gardner, 2003-NMCA-107, ¶24, 134 N.M. 294, reiterated that the desire to obtain sexual gratification was not necessary; the defendant may have intended otherwise to intrude on the victim’s bodily integrity.

34.5.3   Aggravated Indecent Exposure
Under §30-9-14.3(A), the elements of aggravated indecent exposure on a minor are:

• Knowingly and intentionally exposing
• The primary genital area
• To public view
• In a lewd and lascivious manner
• With the intent to threaten or intimidate another person
• While committing one or more enumerated acts or criminal offenses, including exposure to a child under age 18, criminal sexual penetration, or child abuse.  §30-9-14.3(A).

"Primary genital area" means the mons pubis, penis, testicles, mons veneris, vulva or vagina.  §30-9-14.3(B).

Aggravated indecent exposure is a fourth degree felony, §30-9-14.3(C), punishable by a basic sentence of eighteen months imprisonment.  §31-18-15(A).  In addition to that sentence, the court must order the offender to participate in and complete a program of professional counseling at his or her own expense.  §30-9-14.3(D).

34.5.4   Incest
Under §30-10-3, the elements of incest are:

• Knowingly intermarrying or having sexual intercourse
• With persons with the following degrees of consanguinity:  parents, children, grandparents and grandchildren of every degree, whole and half brothers and sisters, uncles, aunts, nieces or nephews. 

Incest is a third degree felony.  §30-10-3.  Note that the statute only criminalizes sexual intercourse, not other sexual penetrations or contacts, and with blood parents, not stepparents.

34.5.5   Sexual Exploitation of Children
Under the Sexual Exploitation of Children Act, several different types of activity can constitute sexual exploitation of children:

• Possession of Medium. The elements of this fourth degree felony are:
• Intentionally possessing
• Any obscene visual or print medium depicting any prohibited sexual act or simulation of such an act
• Knowing or having reason to know that the medium depicts a prohibited sexual act or simulation of a sexual act, and
• Knowing or having reason to know that one or more of the participants in the act is under age 18.  §30-6A-3(A).

• Distribution/Possession of Medium.  The elements of this third degree felony are:
• Intentionally distributing
• Any obscene visual or print medium depicting any prohibited sexual act or simulation of such an act
• Knowing or having reason to know that the medium depicts a prohibited sexual act or simulation, and
• Knowing or having reason to know that one or more of the participants in the act is under age eighteen.  §30-6A-3(B).

• Causing/Permitting Minor to Engage in Act.  The elements of this felony are:

• Intentionally causing or permitting
• A child under eight
• To engage in any prohibited sexual act or simulation of such an act
• Knowing, having reason to know, or intending that
• The act may be recorded in any obscene visual or print medium, or performed publicly.

This crime is a third degree felony unless it is perpetrated on a child under age thirteen, in which event it is a second degree felony.  §30-6A-3(C).

• Manufacture of Medium.  The elements of this second degree felony are:
• Intentionally manufacturing
• Any obscene visual or print medium
• Depicting any prohibited sexual act or simulation of such an act
• If one or more of the participants in the act is a child under age eighteen.  §30-6A-3(D).

Section 30-6A-2 defines the key terms used in the foregoing crimes as follows:

• "Manufacture" means the production, processing, copying by any means, printing, packaging or repackaging of any visual or print medium depicting any prohibited sexual act or simulation of such an act if one or more of the participants in the act is under eighteen years of age.

• “Obscene” means any material when the content, if taken as a whole:
• appeals to a prurient interest in sex, as determined by the average person applying contemporary community standards;
• portrays a prohibited sexual act in a patently offensive way; and
• lacks serious literary, artistic, political or scientific value.

In State v. Rendleman, 2003-NMCA-150, 134 N.M. 744, the Court of Appeals considered whether photographs of children in various states of undress were obscene under §30-6A-2 and concluded that only intolerable sexually explicit material could be deemed obscene without violating Article II, Section 17, the free speech provision of the New Mexico Constitution.  Applying this standard, the court concluded that photographs of nude children engaged in typical childhood activities without showing the children’s genitals or pubic area were not obscene.  However, the court remanded the case back to the trial court given that certain other photographs were such that a reasonable juror could find that they were intended to appeal to prurient interests or were patently offensive.

• “Performed publicly" means performed in a place that is open to or used by the public.

• "Prohibited sexual act" means:  (1) sexual intercourse, including genital-genital, oral-genital, anal-genital or oral-anal, whether between persons of the same or opposite sex; (2) bestiality; (3) masturbation; (4) sadomasochistic abuse for the purpose of sexual stimulation; or (5) lewd and sexually explicit exhibition with a focus on the genitals or pubic area of any person for the purpose of sexual stimulation.  

• "Visual or print medium" means: 
  
  (1) any film, photograph, negative, slide, computer diskette, videotape, videodisc or computer or electronically generated imagery; or 
  
  (2) any book, magazine or other form of publication or photographic reproduction containing or incorporating film, photograph, negative, slide, computer diskette, videotape, videodisc or any computer generated or electronically generated imagery.

34.5.6  Child Solicitation by Electronic Communication Device
Under §30-37-3.2(A), the offense of “child solicitation by electronic communication device” consists of an individual knowingly and intentionally soliciting a child under sixteen years of age, by means of an electronic communication device:

• to engage in sexual intercourse, sexual contact or in a sexual or obscene performance, or
• to engage in any other sexual contact when the perpetrator is at least four years older than the child. 

“Electronic communication device” is defined as a computer, video recorder, digital camera, fax machine, telephone, cellular telephone, pager, audio equipment or any other device that can produce an electronically generated image, message or signal.  §30-37-3.2(F).  Those charged with this offense cannot use as a defense that the alleged intended victim was a law enforcement officer posing as a child.  §30-37-3.2(D). 

Child solicitation by electronic communication device is a fourth degree felony if the child is at least thirteen but under sixteen years of age and a third degree felony if the child is under thirteen.  §30-37-3.2(B).  The crime is committed in this state if an electronic communication device transmission either originates or is received in this state.  §30-37-3.2(E). 

34.6   Evidence (See also Chapter 27)

34.6.1   Abuse and Neglect Reports
The contents of a report of child abuse or neglect, required by §32A-4-3 of the Children’s Code, and related facts, may not be excluded from evidence on the grounds that the matter may be the subject of a physician-patient privilege or similar privilege or rule against disclosure.  §32A-4-5(A).

34.6.2   Limitations on Privileged Communications
Under Rule11-504(D)(4) of the Rules of Evidence, there is no privilege for communications relevant to any information that a doctor, psychotherapist or patient is required by statute to report to a public employee or state agency.

Under Rule 11-505(D)(1), there is no privilege in proceedings in which one spouse is charged with a crime against a child of either spouse.

34.6.3   CYFD Records
All records or information concerning a party to a civil abuse or neglect proceeding that are in the possession of the court or CYFD are confidential, although they are open to inspection by the district attorney unless use immunity has been granted.  §32A-4-33(A) and (B)(8).

Use immunity prohibits the district attorney from obtaining records, documents, or other physical objects produced by an immunized respondent, when production of those items was compelled by a court order.  §32A-4-11(B).  Additionally, use immunity prevents the district attorney from obtaining a respondent’s in-court testimony, as well as respondent’s statements made during the course of court-ordered psychological evaluation or treatment.  §32A-4-11(A) and (C).  Information otherwise available is not subject to use immunity.

Because use immunity orders may not be granted after the fact, any statements made by respondents either in treatment, for evaluation or in court prior to the entry of the immunity order are not covered by the order.  Furthermore, use immunity “shall attach only to those statements made during the course of the actual evaluation or treatment and specifically does not attach to statements made to other department employees, agents or other representatives in the course of the investigation of alleged child abuse or neglect.”  §32A-4-11(C). 

The district attorney is given notice of the hearing and an opportunity to respond to the motion for use immunity.  The district attorney has statutory standing to object to the immunity order.  As a practice note, in Bernalillo County, the Second Judicial District Attorney’s Office files a standard Notice of Objection to a motion for immunity based on previous arguments and court decisions in specific Children’s Court cases.

The State is prohibited from using evidence gained from defendant’s immunized statements in any later criminal prosecution.  See Kastigar v. United States, 406 U.S. 441 (1972); State v. Olivas, 1998-NMCA-024, ¶6, 124 N.M. 716.  If a defendant makes a showing that he or she testified or gave information under a grant of immunity, the State must prove at a Kastigar hearing that all of the evidence it wishes to use was derived independently and legitimately.

34.6.4   Videotaped Depositions of Alleged Child Victims
In any prosecution for criminal sexual penetration or criminal sexual contact of a minor, the district court may, for a good cause shown, order a videotaped deposition of any alleged victim who is under sixteen to be used in lieu of direct testimony at trial. The deposition must be videotaped in the judge’s chambers and the judge, district attorney, defendant, and his or her attorney(s) must be present.  As with all witnesses, the alleged victim will be examined and cross-examined under Rule 11-611.  §30-9-17.

Under Rule 5-504 of the Rules of Criminal Procedure for the District Court:

• The person seeking the videotaped deposition must show that the child may be unable to testify without suffering unreasonable and unnecessary mental or emotional harm.
• The deposition may be admitted as evidence as an additional exception to the hearsay rule if:
• The child will be unable to testify without suffering unreasonable and unnecessary mental or emotional harm;
• The deposition was presided over by a district judge and defendant was present and represented by counsel or waived counsel; and
• The defendant was given an adequate opportunity to cross-examine the child, subject to such protection as the judge deems necessary.

Rule 5-504 provides that the deposition may also be used for any of the reasons set forth in Rule 5-503(N).  However, Rule 5-503 was rewritten in the year 2000 and no longer contains Paragraph N.  Former Paragraph N allowed use of the deposition if the witness was unavailable as defined in Rule 11-804, the witness gave inconsistent testimony at the trial or hearing, or the deposition was otherwise admissible.

The relevant case law includes:

• State v. Herrera, 2004-NMCA-015, ¶9, 135 N.M. 79.  Defendant implicitly waived his right to confront the child witnesses against him when he did not file a response to the State’s motion for a videotaped deposition, did not object when the videotaped deposition was taken or admitted as evidence, and when he relied on the deposition tape in his opening and closing arguments. 

• State v. Fairweather, 116 N.M. 456, 461-463 (1993).  Court must make requisite findings that the individualized harm to the children outweighs the defendant’s right to face-to-face confrontation with his accusers.  See also State v. Vigil, 103 N.M. 583, 585-587 (Ct. App. 1985); State v. Altgilbers, 109 N.M. 453, 460-462 (Ct. App. 1989).

• State v. Benny E., 110 N.M. 237, 241 (Ct. App. 1990).  Particularized findings of harm must be made by the court before permitting the victim to testify outside the presence of the defendant. 

• State v. Tafoya, 108 N.M. 1, 4-5 (Ct. App. 1988), on remand from the U.S. Supreme Court after Coy v. Iowa, 487 U.S. 1012 (1988).  Defendant may be in another room (away from victim) during the deposition, but only when the harm to the victim outweighs defendant’s right to a face-to-face confrontation and the court makes particularized findings to that effect.

• See also §34.6.5 below, discussing State v. Ruiz, 2001-NMCA-97, 131 N.M. 241, and the committee commentary to Rule 5-504.

Videotapes are subject to a protective order of the court in order to protect the privacy of the victim.  §30-9-17(E).

34.6.5   Psychological Evaluations of Victims
Every person is competent to be a witness except as otherwise provided in the Rules of Evidence.  Rule 11-601.

Under §30-9-18, if the crime charged is criminal sexual penetration or criminal sexual contact of a minor and the alleged victim is under 13, the court may hold an evidentiary hearing to determine whether to order a psychological evaluation of the alleged victim on the issue of competency as a witness.  If the court determines that the child’s competency is in sufficient doubt that the court requires expert assistance, then the court may order a psychological evaluation.

If an evaluation is granted:

• it must be conducted by only one psychologist or psychiatrist;
• the court must select the evaluator;
• the evaluator may be used by either or both parties; and
• if the victim has been evaluated on competency during an investigation by a psychologist or psychiatrist selected in whole or in part by law enforcement, the psychological evaluation shall be conducted by a psychologist or psychiatrist selected by the court upon recommendation of the defense.

Although there is no other provision in the law expressly allowing the defendant to obtain a psychological evaluation of the alleged victim, courts have found that a psychological evaluation is warranted when the victim’s mental anguish is put in issue by the State.  For example, in State v. Garcia, 94 N.M. 583, 586-87 (Ct. App. 1980), the defendant was entitled to an evaluation of the victim because mental anguish was alleged as an essential element of the crime of criminal sexual penetration by the use of force or coercion that results in mental anguish as the personal injury. 

Similarly, the Court of Appeals held that the State placed the child’s mental state at issue when it requested a videotaped deposition because testifying would cause the child unreasonable mental anguish.  State v. Ruiz, 2001-NMCA-97, 131 N.M. 241.  Although the appellate court did not hold that a psychological evaluation was required under the circumstances, it remanded to allow the trial court to determine whether to order the psychological evaluation.  Id. ¶40.  

The Committee Commentary to Rule 5-504 (videotaped deposition rule) discusses proposed amendments that would limit psychological evaluations.  The committee felt that it was “the rare case that a psychological examination is necessary to show good cause” for a videotaped deposition and if it is one of those rare cases, the committee recommended that the “trial judge should appoint an independent psychiatrist or psychologist to examine the child and report to the court.  No other examination should be required.”

34.6.6   Expert Witness Testimony
Under Rule 11-702, the prerequisites for admission of expert witness testimony are that:

• The witness is qualified as an expert by knowledge, skill, experience, training or education; and
• Scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.

If a witness is qualified as an expert, the witness may testify in the form of an opinion or otherwise.  Rule 11-702.

Case law further clarifies these requirements:

• State v. Alberico, 116 N.M. 156 (1993), set forth the standards for admitting expert testimony in child abuse cases, holding that:
• Expert post traumatic stress disorder (PTSD) testimony must be scientifically valid, probative and assist the trier of fact.
• PTSD testimony is admissible if it is provided by a properly qualified mental health professional who testifies on the issue of whether the victim’s PTSD symptoms are consistent with sexual abuse.
• Improper PTSD testimony includes direct evidence of the victim’s credibility, direct evidence of the perpetrator’s identity, testimony that sexual abuse caused the victim’s PTSD symptoms, testimony identifying or equating PTSD with RTS (rape trauma syndrome), and testimony offered to explain the victim’s post-incident behavior where the defendant did not raise the issue.

• State v. Lucero, 116 N.M. 450 (1993), which followed Alberico, emphasized that three forms of expert testimony are prohibited:  (1) the expert may not comment directly on the victim’s credibility; (2) the expert may not identify the perpetrator; and (3) the expert may not testify that the victim’s PTSD symptoms were caused by sexual abuse.  However, the prosecution should be allowed to inquire into these prohibited areas if the defense opens the door to such testimony.

34.6.7 Hearsay Rules of Evidence

Confrontation Clause Considerations

Under the Confrontation Clauses of the 6th Amendment to the U.S. Constitution (applied to states through the 14th Amendment) and Article II, Section 14 of the New Mexico Constitution, criminal defendants have a right to cross-examine witnesses against them.  This right may be compromised when a hearsay statement is admitted into evidence without the declarant being available for cross-examination.  Consequently, the U.S. Supreme Court has ruled that when hearsay evidence offered against a criminal defendant is testimonial and the declarant is unavailable to testify, the federal Confrontation Clause prohibits admission of the evidence unless the defendant had a prior opportunity to cross-examine the declarant.  See Crawford v. Washington, 541 U.S. 36 (2004).
  
The Supreme Court stated that the “core class” of testimonial statements requiring the opportunity for cross-examination may include ex parte in-court testimony (or its functional equivalent) and extra-judicial statements contained in formalized testimonial materials. Examples may include:

• Affidavits.
• Depositions.
• Statements made while in police custody.
• Statements made in response to police interrogation.
• Confessions.
• Prior testimony at a preliminary hearing, before a grand jury or during a former trial.
• Similar pretrial statements that declarants would reasonably expect to be used in a prosecution.
• Statements made under circumstances that would lead an objective witness to reasonably believe that the statements would be available for use at a later trial.

Since Crawford, New Mexico’s appellate courts have held hearsay evidence to be testimonial under the Crawford decision in a number of cases.  See e.g., State v. Walters, 2006-NMCA-071, 139 N.M. 705, cert. granted, 2006-NMCERT-004, 134 P.3d 120; State v. Henderson, 2006-NMCA-059, 139 N.M. 595; State v. Romero, 2006-NMCA-045, 139 N.M. 386, cert. granted, 2006-NMCERT-006; State v. Forbes, 2005-NMSC-27, 138 N.M. 264; State v. Duarte, 2004-NMCA-117, 136 N.M. 404; State v. Alvarez-Lopez, 2004-NMSC-030, 136 N.M. 309; and State v. Johnson, 2004-NMSC-029, 136 N.M. 348.

In four of these cases, the Supreme Court or the Court of Appeals held that admission of an unavailable accomplice’s statement violated the defendant’s confrontation rights because the statements were made while in police custody.  According to the court, statements made during a custodial interview fall “squarely within the class of ‘testimonial’ evidence” described by Crawford.  Johnson¸ 2004-NMSC-029, ¶7; see also Forbes, 2005-NMSC-27, ¶13; Alvarez-Lopez, 2004-NMSC-030, ¶24; and Duarte, 2004-NMCA-117, ¶13.  Similarly, in a trial of multiple defendants, the Crawford analysis and holding applied where individual confessions made by each defendant to the police, corroborating interlocking confessions of the defendants, were admitted into evidence but none of the defendants testified at trial.  Walters.

The preliminary hearing testimony of an unavailable witness is also considered testimonial.  State v. Henderson, 2006-NMCA-059, ¶14, 139 N.M. 595.  However, in Henderson, the court held that introduction of the testimonial evidence did not violate the Confrontation Clause because the defendant had a prior opportunity to cross-examine the statement being offered into evidence at trial.  Id. ¶16.

In Crawford, the U.S. Supreme Court also identified types of evidence that are ordinarily admissible under exceptions to the hearsay rule and that are not testimonial, and therefore admissible against defendants in criminal cases, including:

• Business records; and
• Statements made in furtherance of a criminal conspiracy.

The New Mexico Supreme Court has added blood alcohol reports to this list of nontestimonial hearsay evidence.  In State v. Dedman, 2004-NMSC-037, ¶30, 136 N.M. 561, the Court determined that a blood alcohol report is not testimonial evidence because it is “generated by [State Laboratory Division] personnel, not law enforcement, and the report is not investigative or prosecutorial.”  The Court further explained that, even though “the report is prepared for trial, the process is routine, non-adversarial, and made to ensure an accurate measurement.”  By characterizing the blood alcohol report as nontestimonial, the Crawford requirement of prior cross-examination did not apply and the report could be admitted under the public record exception to the hearsay rule.

To summarize, before admitting hearsay evidence in a criminal case, New Mexico courts must now consider whether the hearsay in question is a “testimonial statement.”  If the hearsay is testimonial and the proponent has demonstrated that the witness is unavailable to testify, the court cannot admit the evidence unless the defendant had an opportunity to cross-examine the declarant before trial.  Keep in mind that Crawford and its progeny do not apply in civil cases, including cases under the Abuse and Neglect Act in children’s court.  See In re Pamela A.G., 2006-NMSC-019, ¶12, 139 N.M. 482.

Hearsay in Criminal Child Abuse and Neglect Cases

New Mexico courts have not yet applied Crawford in a criminal child abuse or neglect case. The cases listed below predate Crawford and must be evaluated in light of the Supreme Court’s current Confrontation Clause analysis.  Note, however, that Crawford does not require an opportunity for prior cross-examination if the declarant is available to testify or if the hearsay is not testimonial. 

In State v. Massengill, 2003-NMCA-024, 133 N.M. 263, the Court of Appeals upheld the trial court’s decision to admit into evidence out-of-court statements made to parents and medical professionals by a three year old too young to recall anything at trial.  The trial court ruled the statements to the parents admissible under the present sense impression exception to the hearsay rule and under the catch-all exception.  The appellate court concluded that the statements to the parents were not sufficiently contemporaneous to warrant admission under the present sense impression exception, but that admission of the statements under the catch-all exception in Rule 11-804(B)(5) did not violate defendant’s constitutional rights under the Confrontation Clause. 

In determining whether the Confrontation Clause was violated, the court in Massengill considered whether the out-of-court statement bore sufficient indicia of reliability to be admissible and explained that sufficient reliability can be inferred when the evidence falls within a firmly rooted exception to the hearsay rule or when there are particularized guarantees of trustworthiness.  Applying the standard used at the time of the case, the court determined that the catch-all exception was not a firmly-rooted exception, but that the child’s statements were sufficiently trustworthy in light of the circumstances of the case to be admitted without violating the Confrontation Clause.  Id. ¶18.   

With respect to the statements made to medical personnel, the defendant in Massengill argued that the statements identifying him as the perpetrator were taken for law enforcement purposes and were not “reasonably pertinent to diagnosis or treatment,” as required by Rule 11-803(D).  The Court of Appeals disagreed.  The medical providers in question provided a plausible rationale for their need to obtain the information and the trial court did not abuse its discretion in admitting the statements.  Id. ¶¶20-21.

Admission of the statements to medical personnel was also challenged as a violation of the Confrontation Clause.  The court held that a statement will be considered sufficiently reliable to withstand challenge only if it falls within a “firmly rooted exception” to the hearsay rule or if “particularized guarantees of trustworthiness” are present.  For a statement to a medical provider to fall within a “firmly rooted” exception when the declarant is not available for cross-examination, the declarant must have a treatment-seeking motive and the physician must rely on the statement for diagnosis or treatment, which was not the case here.  Id. ¶31.  However, the court was satisfied that the statements were made under circumstances having particularized guarantees of trustworthiness.  Hence, their admission did not violate the Confrontation Clause.  Id. ¶¶33, 35.

State v. Casaus, 1996-NMCA-031, 121 N.M. 481, limited the admission of prior consistent statements as substantive evidence under Rule 11-801(D), relying on Tome v. U.S. (Tome I), 513 U.S. 150 (1995).  The court found that, to be admitted, the statement must have been made prior to the evidence of fabrication or improper influence or motive.  The statement must also be consistent.  The declarant must testify and be subject to cross-examination regarding the prior statement.  The trial court must determine whether there is an improper influence or motive and if so, when that impropriety originated.  Assuming the other criteria are met, if the improper influence or motive originated after the statement was made, the statement is admissible.  Example:  Child Sara tells her teacher on Monday that her father molested her.  On Tuesday, the father punishes Sara.  On Wednesday, Sara tells the school counselor that her father molested her.  The statement made by Sara on Monday would be admissible because it was made prior to the improper motive, i.e. Sara being angry with her father for punishing her.  The statement Sara made on Wednesday would not be admissible because it was made after the basis for the improper motive arose.

34.7   Case Process

34.7.1   Usual Steps in Prosecution
The usual steps of a criminal child abuse or neglect prosecution include:

• Report to CYFD or law enforcement.
• Cross-report to the other agency.
• Coordinated investigation.
• Possible safehouse interview.
• Arrest/search warrants.
• Screening by District Attorney’s Office.
• Obtain records from CYFD.
• Obtain records from victim’s treatment providers.
• Dismiss or pre-indictment plea or indict.
• Grand jury or preliminary hearing.
• If pre-indictment plea, plea before the court, then sentencing.
• If indicted, then arraignment.
• Discovery process - interviewing witnesses, motions hearings.
• Plea, dismiss or prepare for trial.
• Videotaped deposition.
• Trial.
• Sentencing.
• Appeal from trial.
• Post-conviction proceedings - i.e., habeas corpus.

34.7.2  Victims’ Rights
The Victims of Crime Act, §§31-26-1 through 31-26-24, protects the rights of victims and imposes requirements on prosecutors and judges to enforce those rights.  Child abuse and abandonment and criminal sexual offenses are among the criminal offenses (known as enumerated offenses) to which the Act applies.  §31-26-3.  Under the Act, a child victim’s parent or grandparent may exercise the victim’s rights, unless they are accused of committing the criminal offenses against the child.  §31-26-7(C).  In such cases, the court may appoint a victim’s representative for the child.  Under §31-26-10.1, which was added in 2005, the court is required at all proceedings to inquire whether a victim (or victim’s representative) is present for the purposes of making a statement.  If the victim is not present, the court must inquire on the record whether an attempt has been made to notify the victim.  If the prosecutor cannot verify that an attempt was made, the court must either reschedule the hearing or continue with the hearing but reserve ruling until the victim has been notified and given an opportunity to make a statement.

34.7.3   Sentencing Issues   
If the court chooses to suspend or defer sentencing for a conviction of any crime that is not a first degree felony, the court may order conditions of probation that are reasonably related to the defendant’s rehabilitation and that are relevant to the offense for which probation was granted.  In State v. Garcia, 2005-NMCA-065, ¶13, 137 N.M. 583, the Court of Appeals held that the district court could prohibit the defendant from having contact with all minors, including his own daughters, subject to modification by further court order.  The defendant had pled guilty to several counts of criminal sexual contact of a minor, one of his daughters. The defendant argued that this condition worked to effectively terminate his parental rights without the due process protections of the termination of parental rights proceedings.  The court held that this probation condition was reasonably related to achieving the sentencing goal of deterring defendant from engaging in similar criminal conduct again.

Under §31-20-5.2(A), when a defendant is convicted of specific sex offenses (enumerated in §31-20-5.2(F) and §31-21-10.1(G)), and the court defers imposition of a sentence or suspends all of any portion of a sentence, the court is required to impose an indeterminate period of supervised probation between five and twenty years.  There is a process set out for periodic review of the terms and conditions of the supervised probation.  §31-20-5.2(B).  Sex offenders are also required to register with the county sheriff under §29-11A-4(B) of the Sex Offender Registration and Notification Act.

Return to Top