2018 New Mexico Statutes
Chapter 30 - Criminal Offenses
Article 37 - Sexually Oriented Material Harmful to Minors
Section 30-37-3.2 - Child solicitation by electronic communication device.

A. Child solicitation by electronic communication device consists of a person 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 conduct when the perpetrator is at least four years older than the child.

B. Whoever commits child solicitation by electronic communication device is guilty of a:

(1) fourth degree felony if the child is at least thirteen but under sixteen years of age; or

(2) third degree felony if the child is under thirteen years of age.

C. Whoever commits child solicitation by electronic communication device and also appears for, attends or is present at a meeting that the person arranged pursuant to the solicitation is guilty of a:

(1) third degree felony if the child is at least thirteen but under sixteen years of age; or

(2) second degree felony if the child is under thirteen years of age.

D. In a prosecution for child solicitation by electronic communication device, it is not a defense that the intended victim of the defendant was a peace officer posing as a child under sixteen years of age.

E. For purposes of determining jurisdiction, child solicitation by electronic communication device is committed in this state if an electronic communication device transmission either originates or is received in this state.

F. As used in this section, "electronic communication device" means 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.

History: Laws 1998, ch. 64, § 1; 2005, ch. 295, § 1; 2007, ch. 68, § 3.

The 2007 amendment, effective July 1, 2007, defined the crime of child solicitation by electronic communication device; prescribed penalties for child solicitation by electronic communication device; added a new Subsection C to provide penalties for persons who commit child solicitation by electronic communication device and who attends or is present at a meeting that the offender arranged pursuant to the solicitation; and defined "electronic communication device".

The 2005 amendment, effective July 1, 2005, deleted the former provision of Subsection A which defined the crime of dissemination of material that is harmful to a minor by computer; created the crime of child solicitation by computer and designated the crime as a fourth degree felony in Subsection A; deleted former Subsection C which provided defenses to the crime of dissemination of material that is harmful to a minor by computer; deleted former Subsection D which provided that it is not a violation of this section for a person to provide access or connection to or from a facility or system or network not under the person's control; deleted former Subsection E which provided that limitation of former Subsection D does not apply to a conspirator with an entity that creates or disseminates indecent material by computer or advertises the availability of indecent material by computer or apply to a person who provides access or connection to a facility, system or network that disseminates indecent material by computer owned or controlled by the person; added Subsection B to provide that in a prosecution for child solicitation by computer it is not a defense that the victim was a peace officer; and added Subsection C to provide that child solicitation by computer is committed in New Mexico if a computer transmission originates or is received in New Mexico.

Not unconstitutional under the first amendment. — Section 30-37-3.2 NMSA 1978, which prohibits the solicitation of children to engage in sexual conduct, is narrowly tailored to the compelling interest of protecting children from online sexual predators and is not unconstitutional under the first amendment. State v. Ebert, 2011-NMCA-098, 150 N.M. 576, 263 P.3d 918.

Not unconstitutionally overbroad. — The failure of Section 30-37-3.2 NMSA 1978 to include an "unlawful" element of the crime of child solicitation by computer does not render the statute unconstitutionally overbroad. State v. Ebert, 2011-NMCA-098, 150 N.M. 576, 263 P.3d 918.

Not unconstitutionally vague as applied. — Where defendant was communicating by computer with a person whom defendant believed to be a twelve-year-old child and defendant requested the "child" to masturbate, Section 30-37-3.2 NMSA 1978 clearly applied to defendant's conduct and was not unconstitutionally vague. State v. Ebert, 2011-NMCA-098, 150 N.M. 576, 263 P.3d 918.

Not unconstitutional under the commerce clause. — Section 30-37-3.2 NMSA 1978 does not violate the commerce clause, because it applies evenhandedly to both in- and out-of-state actors; applies only to communications that originate or are received in New Mexico; addresses behavior relevant to its local purpose of preventing the sexual exploitation of children; and does not impose any burden on legitimate interstate commerce. State v. Ebert, 2011-NMCA-098, 150 N.M. 576, 263 P.3d 918.

Injunction against enforcement. — Because plaintiffs, a broad array of internet content providers, were likely to prevail in their challenge to this section on grounds that it violated the first, fifth and fourteenth amendments to the United States constitution, and the commerce clause thereof, they were entitled to a preliminary injunction enjoining its enforcement. ACLU v. Johnson, 4 F. Supp. 2d 1029 (D.N.M. 1998), aff'd, 194 F.3d 1149 (10th Cir. 1999).

Defense of entrapment rejected. — Under the subjective approach to the defense of entrapment, the focus is on the defendant's intent or predisposition to commit the crime, with the prosecution bearing the burden of proving to the fact-finder that the defendant was predisposed to commit the crime; where the prosecution proves that the defendant was predisposed to commit the crime and the police merely provided an opportunity to commit a crime that is free of police inducement and overreach, and the defendant avails himself of the opportunity, the subjective entrapment defense must fail. State v. Schaublin, 2015-NMCA-024, cert. denied, 2015-NMCERT-002.

Where defendant was convicted of child solicitation by electronic communication device; and where the state presented evidence that the police presented an opportunity, via a "women seeking men" Craigslist posting in which the online profile immediately represented herself as a fifteen-year-old girl, and where defendant availed himself of the opportunity presented by the police when he continued to communicate with the "fifteen-year-old," even after having learned her age, and where defendant introduced sexuality into the communications and arranged to meet the fifteen-year-old, defendant's willingness to engage in sexually explicit conversations with the online profile, which was not the product of police overreach or improper inducement, was sufficient evidence of defendant's predisposition to commit the crime of child solicitation by electronic device to support the jury's rejection of his subjective entrapment defense. State v. Schaublin, 2015-NMCA-024, cert. denied, 2015-NMCERT-002.

Entrapment as a matter of law. — Entrapment as a matter of law exists when there is undisputed testimony which shows conclusively and unmistakably that an otherwise innocent person was induced to commit the act or when the district court determines that as a matter of law the police conduct exceeded the standards of proper investigation. State v. Mendoza, 2016-NMCA-002.

Where defendant was convicted of child solicitation by electronic device, evidence that law enforcement posted an ad in an adults-only section of a website and used an age-regressed photo of an adult to accompany the false persona of a fifteen-year-old child, who purportedly placed the ad, was insufficient to support defendant's claim that he was entrapped as a matter of law, when the evidence showed that defendant was made aware at the outset that he was conversing with a fifteen-year-old child, that defendant first introduced the subject of sex in his conversations with the fifteen-year-old child, and where the record was void of any evidence that the police practices exceeded the standards of proper investigation or were unconscionable. State v. Mendoza, 2016-NMCA-002.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Validity of state statutes and administrative regulations regulating internet communications under commerce clause and First Amendment of federal constitution, 98 A.L.R.5th 167.