2018 New Mexico Statutes
Chapter 30 - Criminal Offenses
Article 37 - Sexually Oriented Material Harmful to Minors
Section 30-37-3.3 - Criminal sexual communication with a child; penalty.

A. Criminal sexual communication with a child consists of a person knowingly and intentionally communicating directly with a specific child under sixteen years of age by sending the child obscene images of the person's intimate parts by means of an electronic communication device when the perpetrator is at least four years older than the child.

B. Whoever commits sexual communication with a child is guilty of a fourth degree felony.

C. As used in this section:

(1) "electronic communication device" means a computer, video recorder, digital camera, fax machine, telephone, pager or any other device that can produce an electronically generated image; and

(2) "intimate parts" means the primary genital area, groin, buttocks, anus or breast.

History: Laws 2007, ch. 67, § 1.

Effective dates. — Laws 2007, ch. 67, § 2, made the section effective July 1, 2007.

Criminal sexual communication with a child may be committed by delivering the electronic communication device directly to the child. — This section requires a person to knowingly and intelligently communicate directly with a specific child; the element of communicating directly with a child by means of an electronic communication device may occur through a third-party carrier such as social media, internet forums and message boards, online file-sharing services, text message, or email, and it may also occur by delivering the electronic communication device containing the obscene images directly to the child, so where defendant recorded himself nude and masturbating, saved the files to a digital memory card, placed the memory card in a cell phone which he handed directly to the child victim, claiming that there was a surprise for her on the phone, defendant's actions constituted the crime of criminal sexual communication with a child. State v. Tufts, 2016-NMSC-020, rev'g 2015-NMCA-075, 355 P.3d 32.

Hand-delivery of obscene images not covered by statute. — Where defendant transferred obscene images of his intimate parts onto a digital memory card and then physically placed the memory card in the child-victim's cell phone, and where the obscene images were never transferred through the cell phone network or transmitted electronically, defendant was wrongly charged and convicted of 30-37-3.3 NMSA 1978, because defendant's conduct did not constitute "sending" by means of an electronic communication device. State v. Tufts, 2015-NMCA-075, cert. granted, 2015-NMCERT-006.