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New Mexico Sexting Laws

New Mexico sexting laws 30-6A-3 permit sexting between teens-fourteen to eighteen- if the act is consensual. What the law does not permit is adult to minor sexting and child pornography-related offences.

Quick take:

  • New Mexico permits sexting between consenting teens aged fourteen to eighteen.
  • Teens tried in the juvenile system do not have to register as sex offenders.
  • Anyone convicted of crimes related to child pornography must register as a sex offender.

New Mexico sexting laws summary

It is vital to realize that although New Mexico sexting laws permit the exchange of inappropriate texts and images between consenting teens, it does not permit sexual exploitation of children or child abuse images. Child abuse images are the same as child pornography, so what constitutes child pornography in New Mexico?

NMSA Section 30-6A-3 says that it is unlawful for anyone to knowingly possess any print or visual media depicting a prohibited sexual act, be the act actual or simulated. The law works under the assumption that the accused knew or should have known that the obscene video, photo, or other media depicts a prohibited act or the persons in the media are below 18. Consequently, viewing, possessing, and distributing videos or pictures of anyone below eighteen engaged in a sexual act constitutes felony exploitation of a child.

If the child depicted in the photo or video is or was thirteen at the time of the crime, the law requires the court to increase the basic sentence by one year. Furthermore, the court cannot suspend or differ the sentence for the first year. If the accused is a teenager, the court may add one year to the imposed sentence.

What if a teen sends you explicit photos?

Section B of the statute states that, Quote, “The provisions of Subsection A of this section shall not apply to a depiction possessed by a child under the age of eighteen in which the depicted child is between the ages of fourteen and eighteen and the depicted child knowingly and voluntarily consented to the possession, and: (1) the depicted child knowingly and voluntarily consented to the creation of the depiction; or (2) the depicted child knowingly and voluntarily produced the depiction without coercion.”

What that means is if both the sender and receiver are above 14 but below 18, and the act is consensual, then no crime is committed. However, if an adult coerces, entices, solicits, or in any way encourages a child to engage in sexual conduct or create sexually explicit material, the person is guilty of felony coercion and possession of child pornography. The point is, the statute does not protect teens and adults from prosecution for possession of child pornography resulting from coercion.

NMS Section 30-6A-3: what to remember

  • Possession and distribution of media depicting a child engaged in sexual conduct is a third-degree child exploitation felony.
  • Permitting or encouraging a child to engage in a sexual act and filming such acts is a third-degree felony. manufacturing or creating child pornography is a second-degree felony.
  • If the child is -or was- below fourteen at the time of the crime. The crime escalates into a second-degree felony.
  •  The distribution of child pornography is a third-degree felony.

New Mexico sexting laws then and now

In the past, teens accused of sexting in New Mexico faced prosecution under the state’s child exploitation/child pornography statute. Today, the law permits minors above fourteen to “knowingly and voluntarily” send explicit texts or photos without coercion. That means asking for nudes or encouraging a minor to create nudes is unlawful.

What if you are an adult?

If a teen sends you sexually explicit texts, photos, or videos, without coercion or solicitation on your part. It is in your best interest to take reasonable steps to delete or destroy the images or report the act to the appropriate authorities (school, parents, law enforcement).

New Mexico sexting laws: the facts

New Mexico does not have a sexting statute. Consequently, the protections above aim to protect teens from sex offender registration, jail/prison time, and the consequences of getting a criminal record at a young age. What that means is, the facts presented will determine the prosecution’s course of action. Furthermore, each photo or video may constitute a separate offense, and a single set of facts may lead to multiple charges.

Therefore, if you are a teen, it is advisable to refrain from creating and distributing child pornography.

Remember, child pornography creation and possession is both a state and federal crime.

What if a teen commits a felony or federal crime related to sexting?

Under federal law, it is unlawful to create, possess, or distribute any media depicting a child under 18 engaged in a sexual act. Sexual act refers to a lewd exhibition of the genitals or buttocks, sexual intercourse, sodomy, excretion, or any other act that applies.

Under state law, anyone, including teens, found guilty of child pornography possession and distribution must register as a sex offender and serve jail time upon conviction if the teen commits a felony or federal crime, for example, if they are above 16 and sends child pornography across state lines/international borders or posts sexually explicit images on social media. In addition, prosecutors may seek to charge the accused in adult court or pursue child porn charges.

New Mexico sexting laws and sex offender registration

Under state law, anyone guilty of violating New Mexico’s child pornography statutes must register as a sex offender. Failure to register is a punishable offense.

What is the punishment for sexting in New Mexico?

Teens accused of petty sexting or misdemeanors may face prosecution in the juvenile system. If prosecuted in juvenile court, the teen will not have to register as a sex offender. Instead, the court may order a less severe sentence, including monitoring, community service, or completion of an educational program.

Teens and adults guilty of possession of felony child pornography may serve up to six years in prison for possession and up to 15 years for the creation of child pornography. The maximum sentence for adults is up to 18 years and a $5000 fine.

New Mexico sexting laws and soliciting a minor via electronic device

As mentioned, in New Mexico, sexting becomes a crime when an adult solicits sexually explicit images from a child or when a child commits an offence that would be a felony if committed by an adult. That means consensual sexting between teens above fourteen and not over eighteen is legal if there is no solicitation or enticement.

Under state statute 30-37.3.2. using an electronic device to “Knowingly and Intentionally” solicit, encourage, entice, or in any way request sexual intercourse, contact, obscene performance, or other sexual acts is a fourth-degree felony if the child is above fourteen. If the child is below fourteen, solicitation escalates into a fourth-degree felony.

Remember, soliciting a minor, conspiring to solicit sex from a minor, and attempting to solicit sexual performance from a child are all felonies. If the person soliciting appears, attends or meets the child in person, the accused is guilty of a third-degree felony. The charges escalate into a second-degree felony if the child is below thirteen.

What to remember:

  • New Mexico law permits law enforcement officers to pose as minors during investigations.
  • Soliciting sexual conduct or performance from minors across state lines or international borders is a federal offense

Note that the term electronic device refers to any device capable of sending or receiving texts, images, videos, or other media. That includes smartphones, computers, audio equipment, and so on.

New Mexico sexting laws and enticing a minor

To entice means to arouse desire; for example, an adult may entice a child to create sexual material in exchange for monetary benefit.

According to New Mexico Statute 30-9-1, “Enticement of a Child,” a person is guilty of enticing a minor if he persuades, attempts to influence or in any way entices a minor below sixteen to enter a building, meet in a secluded place, or enter a vehicle with the intent to commit a prohibited act.

Under the statute, enticing a minor is a misdemeanor for a first offense.

New Mexico sexting laws, harassment, and online stalking

Non-consensual sexting, say, sending nudes to an adult without consent, may constitute harassment. In addition, under 30-20-12. “use of the telephone to terrify, intimidate, threaten, harass, annoy or offend,” it is unlawful to use a phone, computer, or any other device with intent to harass, annoy, offend, or intimidate. It is also unlawful to use lewd profane language, suggest criminal or lascivious acts, or threaten physical harm to a person or property.

30-20-12. What to remember:

  • Extortion/sextortion is a misdemeanor for a first offense. If the accused had priors, the crime escalates into a fourth-degree felony.
  • Harassment by phone is a misdemeanor for a first offense.
  • State law prohibits using obscene language or suggesting lascivious acts on phone.

New Mexico is one of the states that categorizes harassment and stalking as separate offenses. State law defines stalking as “intentionally or knowingly pursuing” an unlawful pattern of conduct that would place the victim in reasonable apprehension of sexual assault, bodily harm, death, or confinement or restrain of the individual or another.

For a first reported offense, the accused is guilty of a misdemeanor. However, if the accused repeats the behavior, for example, if someone sends you sexually explicit photos or photos of their genitals without consent on numerous occasions (pattern), the crime escalates into a fourth-degree felony.

Victims of stalking or harassment may take civil action to recover damages.

The punishment for stalking and harassment in New Mexico includes possible jail time, and the court may order the accused to complete a professional counseling program.

New Mexico sexting laws and revenge porn

NMS 30-37A-1 “Unauthorized distribution of sensitive image” is new Mexico’s revenge porn law. Under the statute, it is unlawful for anyone to disseminate, make available, or publish sensitive images without the consent of the person depicted. For example, suppose a person who has a reasonable expectation of privacy willingly sends you nudes and you display or share the image with a person outside the relationship. In that case, you are guilty of a misdemeanor. For a subsequent offense or if the accused has priors, the crime escalates into a fourth-degree felony.

In short, a person, teen, or adult, accused of sexting may face prosecution under the state’s solicitation laws, child pornography laws, harassment /stalking laws, and revenge porn laws. Furthermore, each photo or video may constitute a separate offense, meaning a conviction will have lifelong consequences. So, we recommend consulting with a defense attorney immediately!

References:

Other New Mexico Laws

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