2018 New Mexico Statutes
Chapter 30 - Criminal Offenses
Article 37 - Sexually Oriented Material Harmful to Minors
Section 30-37-1 - Definitions.
As used in this act:
A. "minor" means any unmarried person who has not reached his eighteenth birthday;
B. "nudity" means the showing of the male or female genitals, pubic area or buttocks with less than a full opaque covering, or the depiction of covered male genitals in a discernibly turgid state;
C. "sexual conduct" means acts of masturbation, homosexuality, sodomy, sexual intercourse or physical contact with a person's clothed or unclothed genitals, pubic area, buttocks or, if such person be female, breast;
D. "sexual excitement" means the condition of human male or female genitals when in a state of sexual stimulation or arousal;
E. "sado-masochistic abuse" means flagellation or torture by or upon a person clad in undergarments, a mask or bizarre costume, or the condition of being fettered, bound or otherwise physically restrained;
F. "harmful to minors" means that quality of any description of representation, in whatever form, of nudity, sexual conduct, sexual excitement or sado-masochistic abuse, when it:
(1) predominantly appeals to the prurient, shameful or morbid interest of minors; and
(2) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and
(3) is utterly without redeeming social importance for minors; and
G. "knowingly" means having general knowledge of, or reason to know, or a belief or reasonable ground for belief which warrants further inspection or inquiry or both, of:
(1) the character and content of any material described herein, which is reasonably susceptible of examination by the defendant;
(2) the age of the minor.
History: 1953 Comp., § 40-50-1, enacted by Laws 1973, ch. 257, § 1.
Cross references. — For provisions regarding other sexual offenses, see 30-9-10 to 30-9-17 NMSA 1978.
Compiler's notes. — The term "this act" means Laws 1973, Chapter 257, which appears as 30-37-1, 30-37-2, 30-37-3, 30-37-4 to 30-37-8 NMSA 1978.
General/specific rule did not apply. — Where defendant, who was convicted of contributing to the delinquency of a minor when defendant wrote a sexually explicit letter to the victim, claimed that under the general/specific rule, the State was required to charge defendant under the sexually oriented materials statute, Section 30-37-2 NMSA 1978, rather than under Section 30-6-3 NMSA 1978; the general/specific rule states that if one statute deals with a subject in general and comprehensive terms and another statute addresses part of the same subject matter in a more specific manner, the latter controls; the contributing to the delinquency of a minor statute requires that the material encourage delinquency; and the sexually oriented materials statute only requires the knowing delivery of harmful materials to a minor, the general/specific rule did not apply because the statutory elements of the statutes were not the same and defendant's conviction did not violate the general/specific rule. State v. Garcia, 2013-NMCA-005, 294 P.3d 1256, cert. granted, 2012-NMCERT-012.
Validity of separate classifications for minors and adults for purposes of legislative control has been explicitly recognized. 1973-74 Op. Att'y Gen. No. 73-54.
Am. Jur. 2d, A.L.R. and C.J.S. references. — Validity, construction and effect of statutes or ordinances prohibiting the sale of obscene materials to minors, 93 A.L.R.3d 297.
Gesture as punishable obscenity, 99 A.L.R.3d 762.
Obscenity prosecutions: statutory exemption based on dissemination to persons or entities having scientific, educational, or similar justification for possession of such materials, 13 A.L.R.5th 567.
