In New Mexico, a person can face criminal charges for engaging in sexual activities with a child. Those who break the law have committed a statutory rape offense, even if the child agrees to or initiates the activity.
The age of consent in New Mexico is 16. However, the age of consent increases to 18 when the victim is a school student and the defendant works or volunteers at the school.
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.
Like most states, New Mexico law doesn't use the term "statutory rape." Rather, these age-based offenses are prosecuted under New Mexico's criminal sexual penetration and contact laws. Penalties depend on the ages of the defendant and victim, their age difference, and the conduct that occurred (sexual penetration or contact).
A person who engages in consensual sexual activities with an underage minor can face felony charges for criminal sexual penetration or criminal sexual contact with a minor.
New Mexico divides age-based criminal sexual penetration (CSP) offenses into two degrees—first and fourth degrees. Sexual penetration refers to sexual intercourse, oral sex, anal sex, and object penetration of the genitals or anal openings.
First-degree CSP. The law makes it a first-degree felony to engage in sexual penetration with a child younger than 13. A person convicted of a first-degree felony faces up to 18 years in prison and a $15,000 fine.
Fourth-degree CSP. An adult (18 or older) who engages in sexual penetration with a 13- to 16-year-old can face fourth-degree felony charges. This offense requires that the defendant be at least four years older than the child and not their spouse. If the child attends school where the defendant works or volunteers, the age of consent increases to 18. The maximum penalty for a fourth-degree felony is 18 months in prison and a $5,000 fine.
(N.M. Stat. §§ 30-9-11, 31-18-15 (2024).)
New Mexico also divides age-based criminal sexual contact with a minor (CSCM) into two degrees—second and third degrees. Sexual contact involves the touching of a minor's intimate parts or causing the minor to touch the defendant's intimate parts. Intimate parts include the genital area, groin, anus, buttocks, and breasts.
Second-degree CSCM (unclothed). A defendant who engages in sexual contact with the unclothed intimate parts of a minor younger than 13 commits a second-degree felony. This second-degree felony carries a sentence of 3 to 15 years in prison and a maximum $12,500 fine.
Third-degree CSCM (clothed). If a defendant touched the clothing covering the intimate parts of a minor younger than 13, the offense is a third-degree felony. A conviction can result in up to six years of prison time and a $5,000 fine.
(N.M. Stat. §§ 30-9-13, 31-18-15 (2024).)
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 applies only when the minor is 13 or older and the parties are less than four years apart in age. For instance, it's not a crime for two 14-year-olds to engage in consensual sex. Nor is it a crime for a 15-year-old and an 18-year-old to engage in sex. If the defendant in either example was 20 years old, it would be a crime.
(N.M. Stat. § 30-9-11 (2024).)
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." Other possible defenses include the marital exemption and mistake of age. Consent is not a defense.
Marital exemption. 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. § 30-9-11 (2024).)
Mistake of age. Unlike most states, 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).)
New Mexico law requires—in addition to the applicable fines and prison time—that people convicted of statutory rape must register as sex offenders. Sex offender registration doesn't apply if the defendant receives a juvenile delinquency adjudication. Failure to register can result in criminal penalties.
(N.M. Stat. §§ 29-11A-3, 29-11A-4 (2024).)
If you're facing a statutory rape charge, consider consulting with an experienced criminal defense attorney. A lawyer can evaluate the strength of the prosecution's case against you and help develop any defenses that might apply to your case.