In New Mexico, it is illegal for an adult (someone 18 or older) to have sex with a minor (someone younger than 16), even if the sex is consensual. Those who break the law have committed statutory rape, even if the child agrees to or initiates the activity.
Statutory rape laws are premised on the assumption that minors are incapable of giving informed consent to sexual activities. Their incapacity is written into the statute—hence the term, “statutory” rape. The age of consent can vary among states, and some states differentiate between consensual sex between minors who are close in age (for example, two teenagers of the same age), as opposed to sex between a minor and a much older adult.
Though statutory rape does not require that the prosecutor prove an assault, it is still rape. Of course, rape that does involve force or an assault is illegal in New Mexico and prosecuted as forcible rape. Assaults of a sexual nature may also be charged under the state’s assault and battery laws and child enticement and abuse laws.
Statutory rape is prosecuted under New Mexico’s criminal sexual contact and penetration laws. Penalties depend on the ages of the defendant and victim, and the conduct that occurred, as described below.
First degree criminal sexual penetration includes oral, anal, or genital sexual intercourse or penetration (however slight, with an object or body part) with a minor who is younger than 13 years old. The offense is a first degree felony, punishable by up to 18 years in prison, a fine of $15,000, or both. (N.M. Stat. Ann. §§ 30-9-11, 31-18-15 (2018).)
Fourth degree criminal sexual penetration includes sexual penetration with a child who is 13, 14, or 15, when the defendant is at least 18 years old and at least four years older than the victim. The crime is a fourth degree felony, punishable by up to 18 months in prison, a fine of as much as $5,000, or both. (N.M. Stat. Ann. §§ 30-9-11, 31-18-15 (2018).)
Criminal sexual contact with a minor includes sexual touching between a minor who is younger than 13 and a defendant of any age. Criminal sexual contact with a minor is either a second or third degree felony, depending on the type of touching involved. Penalties for second degree criminal sexual contact include at least three years (and up to 15 years) in prison, a fine of up to $12,500, or both. Third degree criminal sexual contact is punishable by up to six years in prison, a fine of up to $5,000, or both. (N.M. Stat. Ann. §§ 30-9-13, 31-18-15 (2018).)
State law requires—in addition to the applicable fines and prison time—that people convicted of statutory rape must register as sex offenders. (N.M. Stat. Ann. §§ 29-11A-3, 29-11A-4 (2018).)
Defendants charged with statutory rape have the usual defenses available to all criminal defendants, such as “Someone else committed this crime,” or “The alleged conduct did not occur.” One or more of the following defenses may also apply.
New Mexico has a marital exemption for statutory rape that allows consensual sex between a married minor and that minor’s spouse, even though their ages would prohibit it if they were not married. (N.M. Stat. Ann. § 30-9-11 (2018).) This defense is a remnant of the marital rape exemption.
Minors are legally incapable of giving consent to having sex. So for example, if Jen, a 15-year-old willingly has sex with Tony, her 23-year-old boyfriend, Tony can be charged with rape, since Jen is not legally capable of giving consent in the first place.
But if Jen and Tony are married and living in New Mexico, Tony need not fear criminal charges for having consensual sex with Jen. This is because New Mexico has a marital exemption to the state’s statutory rape laws.
However, if Tony were to rape Jen (force her to have sex against her will), he would have no protection under the law even if the two are married.
Named after Shakespeare’s young lovers, “Romeo and Juliet” exceptions are intended to prevent serious criminal charges against teenagers who engage in consensual sex with others close to their own age. New Mexico’s Romeo and Juliet exemption protects from prosecution certain minors who engage in consensual sex. The law applies to consensual sexual acts between a minor who is 13 or older and a defendant who is younger than 18 and less than four years older than the younger minor. (N.M. Stat. Ann. § 30-9-11 (2018).)
However, sexual contact with a child under 13 is always a serious crime. A conviction for engaging in sexual activity with a minor younger than 13 can result in significant prison time.
Defendants accused of statutory rape often claim that they had no reason to know that their partner was underage. They may argue that the victim herself represented that she was older than she was, and that a reasonable person would have believed her. In most states, even a reasonable mistake of age is not a defense to statutory rape. But in New Mexico, courts have held that a defendant’s ignorance or mistake of a child’s age can be a potential defense to a statutory rape charge. (See, for example, Perez v. State, 111 N.M. 160 (1990).)
It’s important to remember that the law can change at any time. If you are facing a statutory rape charge, consider consulting with an experienced criminal defense attorney who regularly practices in your area. A lawyer can evaluate the strength of the prosecution’s case against you and help develop any defenses that might apply to your case.
A lawyer can often negotiate with the prosecutor for a lesser charge or a reduction in penalties (such as, for example, probation instead of prison time) and will know how prosecutors and judges typically handle cases like yours.
If you are a victim of sexual assault or rape, contact Rape, Abuse & Incest National Network (RAINN) for online help and local resources.
Updated September 25, 2018