2018 New Mexico Statutes
Chapter 30 - Criminal Offenses
Article 10 - Marital and Familial Offenses
Section 30-10-3 - Incest.

Incest consists of knowingly intermarrying or having sexual intercourse with persons within the following degrees of consanguinity: parents and children including grandparents and grandchildren of every degree, brothers and sisters of the half as well as of the whole blood, uncles and nieces, aunts and nephews.

Whoever commits incest is guilty of a third degree felony.

History: 1953 Comp., § 40A-10-3, enacted by Laws 1963, ch. 303, § 10-3.

Purpose of section. — This section is directed toward prohibiting sexual intercourse between specific relations within the blood line. State v. Hargrove, 1989-NMSC-012, 108 N.M. 233, 771 P.2d 166.

Term "consanguinity" admits of only one plain meaning. It is the relationship by descent from the same stock or common ancestor, related by blood. State v. Hargrove, 1989-NMSC-012, 108 N.M. 233, 771 P.2d 166.

Elements of offense. — The purpose of Laws 1917, ch. 50, § 1 (former 40-7-3, 1953 Comp.) was to prevent sexual intercourse between close relatives, and the free act of the one being tried, with knowledge of the relationship, was all that was required, it being immaterial that the same testimony would have sustained a conviction for rape. State v. Hittson, 1953-NMSC-018, 57 N.M. 100, 254 P.2d 1063.

The free act of the one being tried, who has knowledge of the relationship, is required to convict one of incest. State v. Hargrove, 1989-NMSC-012, 108 N.M. 233, 771 P.2d 166.

Failure to instruct the jury that it had to find beyond a reasonable doubt that defendant had knowledge of the prohibited blood relationship was reversible error, where defendant's testimony that he believed he did not father his "adopted daughter" demonstrated that he did not concede that at the time they had intercourse he knew she was his biological daughter. State v. Hargrove, 1989-NMSC-012, 108 N.M. 233, 771 P.2d 166.

Uncle/niece marriages. — New Mexico's public policy against incest did not preclude the district court from awarding a mother primary physical custody of her children, after taking into account her plans to marry her uncle, where that choice was in the best interests of the children, and mother and uncle intended to reside in California. Leszinske v. Poole, 1990-NMCA-088, 110 N.M. 663, 798 P.2d 1049, cert. denied, 110 N.M. 533, 797 P.2d 983.

Separate counts of incest and criminal sexual penetration. — There was no error in charging defendant on separate counts of criminal sexual penetration and incest under a theory that he had sexual intercourse with a child under 13 years of age and a child between 13 and 16 years of age, and he knew each was his biological daughter. State v. Hargrove, 1989-NMSC-012, 108 N.M. 233, 771 P.2d 166.

Polygraph test results. — In prosecution for incest, it was reversible error for trial court to admit into evidence the results of a polygraph test over objection of the defendant, despite the fact that defendant had signed a waiver agreeing to be bound by the results of the test. State v. Trimble, 1961-NMSC-076, 68 N.M. 406, 362 P.2d 788.

Double jeopardy. — There is no double jeopardy impediment to convicting and sentencing a defendant to consecutive terms for both incest and criminal sexual penetration arising out of the same act. Swafford v. State, 1991-NMSC-043, 112 N.M. 3, 810 P.2d 1223.

Law reviews. — For article, "The Perils of Intestate Succession in New Mexico and Related Will Problems," see 7 Nat. Resources J. 555 (1967).

For article, "New Mexico's 1969 Criminal Abortion Law," see 10 Nat. Resources J. 591 (1970).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 41 Am. Jur. 2d Incest § 1 et seq.

Adoption, relationship created by, as within statute regarding incest, 151 A.L.R. 1146.

Consent as element of incest, 36 A.L.R.2d 1299.

Prosecutrix in incest case as accomplice or victim, 74 A.L.R.2d 705.

Incest as included within charge of rape, 76 A.L.R.2d 484.

Admissibility, in incest prosecution, of evidence of alleged victim's prior sexual acts with persons other than accused, 97 A.L.R.3d 967.

Crimes against spouse within exception permitting testimony by one spouse against other in criminal prosecution - modern state cases, 74 A.L.R.4th 223.

Sexual intercourse between persons related by half blood as incest, 34 A.L.R.5th 723.

42 C.J.S. Incest §§ 2 to 6.