The Age of Consent Defined in New Mexico
The legal age of consent in New Mexico is 16 years old. This means that as long as both individuals are at least 16, there is no age of consent that is legally required to be met. Beyond the fact that there is no minimum age requirement, it is worth noting that there are no recent changes to the law or exceptions.
In cases that involve three parties, and one is below the age of consent, even if the two legal adults having sexual relations with one another are well above the age of 16 in the state of New Mexico , it still may be considered a felony. As outlined in the New Mexico Penal Code, it is a third-degree felony to have sexual relations with a 13-, 14- or 15-year-old if one party is at least 22 years of age. It is also considered a fourth-degree felony. It also can be third-degree felony if the minor is 13 years old or older, and one of the parties is someone who has a role that is representative of authority over the other, such as a teacher or coach.
Consequences for Violating the Age of Consent
Violating New Mexico consent laws can result in misdemeanor or felony charges, depending on the particulars of the case. Charges are frequently elevated from misdemeanors to felonies if:
Class A misdemeanors like disorderly conduct, criminal sexual contact with a minor, and certain forms of sexual exploitation of children are typically punishable by up to 364 days in jail and/or a fine of up to $1,000. Conviction may also result in the waiver, suspension, or revocation of professional licenses (i.e. license to practice law, teacher certification). Violent offenses under this clause may be enhanced to a Class 4 felony, punishable by up to 18 months in prison and/or fines of up to $5,000.
The penalty is elevated to a fourth degree felony if the defendant is an adult who has engaged in sexual intercourse or sexual contact with a child who is less than 13 years old, is a person responsible for the care, custody, or control of the child, or is an employee of an institution or facility where the crime took place.
Anyone convicted of distributing or disseminating child pornography (also known as criminal sexual exploitation of a minor) is guilty of a third degree felony, punishable by up to three years in prison and/or penalties of up to $5,000.
A charge of aggravated criminal sexual penetration of a minor may be enhanced to a first degree felony if the defendant is an employee of an "educational institution," defined as a public or private institution or entity that enrolls students for the purpose of providing education to those students. Penalties for first degree felonies include imprisonment for up to nine years and/or fines of up to $30,000. Conviction may also result in sex offender registration.
All sex crimes against minors, including statutory rape and other sexual assaults, have the potential to result in mandatory listing on the New Mexico sex offender registry and/or the national rape and chemical castration registries. Penalties are primarily based upon the age of the defendant. Penalties may also include mandatory counseling, treatment, or care. Conviction may also result in a waiver, suspension, or revocation of professional licenses.
Close-in-Age Exceptions and Age Gaps
New Mexico does have a "close-in-age" exception, although it is limited. In addition to the fact that the victim must be legally capable of giving consent – that is, older than 16 years old – the law specifies the maximum age of the victim to be found guilty of statutory rape:
• When the accused is at least 13 years old and the victim is at least 16 years old but less than 18 years old, the ages of the victim and the accused must be no more than four years apart (N.M. Stat. §30-9-5).
This means that if the victim was 16, the accused could not be more than 20. If the victim was 17, the accused could not be more than 21. It is not clear whether this exception would make statutory rape a lesser sexual offense with a lower penalty. In other words, we are unclear whether the statute even allows the accused to be found guilty of a lesser offense than statutory rape, or just provides an affirmative defense.
But there are no further exceptions or "Romeo and Juliet" laws in New Mexico.
Parental Rights in New Mexico and the Age of Consent
In New Mexico, consent laws surrounding sexual activity with a minor child relate to the responsibilities of their parents or legal guardians. While the age of consent in New Mexico is 18 years of age, this does not mean that all sexual activity with and around minors must be supervised. Because the court takes the view that minors are not competent to make decisions about their own well being, it also places obligations on the parents or legal guardians.
First, parents must supervise their children. How much supervision will depend on the age and maturity of the child, the availability of other adults to provide supervision, and the activity that the child will engage in. This is an imprecise area because what is acceptable for one child might not be acceptable for another. However, parents also have the option to delegate supervision to their children. Demanding supervision be offered by someone else is not sufficient; that person may be thought of as a surrogate to the parents.
Where supervision is impossible or impractical, a parent can apply to the court for an exoneration. The court will take the position that supervision by parents is ideal, but will allow exceptions. Exceptions include work, school, instruction in a sport (e.g. soccer or karate) , and participation in a competitive event where supervision is not feasible, like a pilot’s license. If the child and parent demonstrate that they cannot find a person to act as a supervisor, the court may be willing to name a person who will supervise your child.
Once the order is in place, the child will be able to do whatever activity is permitted by the order. Assuming that the child’s conduct is supervised in accordance with the order and that the child obtains the permission of the supervisor to engage in the activity, the child will not be in violation of the law. Not only will the child not be held to be in violation of the law, but so too will the person who supervises the activity. Permission is vicariously granted to the parent or guardian.
This does not mean that a parent has a duty to follow their child around at all times. It does not prevent your child from running to the park and playing baseball. What this means is that if your child is going to be somewhere where there will not be adult supervision, the court wants to make sure that your child has adult supervision. This is a broad concept that may be placed on anything from soccer practice to girl scouts to bowling. Understanding how to obtain an order that meets the needs of you and your family is best left to an experienced attorney.
New Mexico Compared to Other States on Age of Consent
When comparing New Mexico’s age of consent laws to surrounding states, we can begin to see a pattern. Texas is similar to New Mexico in that both states’ laws have been either amended or repealed. Like the current laws of New Mexico, Texas has chosen to repeal its laws in favor of a more subjective worded law. As of September 1st, 2017, Texas law no longer states that a person under 17 cannot consent to sex with a person 30 or more years older. It eliminates the objective standard of 30 years age difference and makes it a defense to be protected if the accused had no way to know the age of consent. Texas now has what is called an Affirmative Defense where they have to prove that the accused did not know that there was a probibal violation. The law also extends the affirmative defense to charges of sexual assault and aggravated sexual assault and permits prosecuters to charge a defendant anywhere from 2 to 20 years. It is important to note that although the Texas laws, as of September 1st, 2017, have changed to have the same ultimate result as New Mexico laws, the laws are not identical and there are still some differences in terms of what the prosecutors must prove and what qualifies as a sex crime as opposed to rape.
Oklahoma also has the minimum age of consent set at 16. Oklahoma’s fifteen years age difference law was also repealed and transformed into an affirmative defense however, unlike New Mexico and Texas, Oklahoma law states that the accused may present an affirmative defense if he or she "was not more than 10 years older than the victim." The definition of consent in Oklahoma law states: "It is not a defense that the defendant mistakenly believed that the victim consented to the sexual act if the defendant’s mistake of fact negated criminal intent." Oklahoma also makes a distinction between Statutory Rapes and other sex related offenses but, like New Mexico, Oklahoma has chosen to make Age of Consent laws subjective rather than objective.
Colorado’s age of consent is 17 however at this point it is unclear if New Mexico’s laws are stricter or if Colorado’s laws are stricter. Under Colorado’s laws, a person under 15 cannot consent to having sexual intercourse with a person is 10 years older. However, if the person is 15 years old the actor may be charged for a lesser degree of sexual offense, sexual assault in the second degree is a misdemeanor whereas, sexual assault in the first degree is a felony. New Mexico statute currently does not set age limits on the parties involved however Colorado’s age of consent law is more similar to Texas’ laws of having an affirmative defense rather than a minimum age of consent.
Guidance for Minors and Parents
It’s critical that young individuals in the state of New Mexico understand the law as it relates to their relationships. If you or someone you know is in a situation where they are under the age of consent as it pertains to New Mexico law, there could be serious legal consequences. Education is key, and if you would like to learn more about age of consent and statutory rape laws in New Mexico, the New Mexico Coalition of Sexual Assault Programs, Inc. is an excellent resource. You can even talk to an advocate online. The National Sexual Assault Hotline also offers free and confidential support 24/7. If you know a young person who has experienced an unwanted sexual advance, make sure you tell them about the New Mexico Coalition of Sexual Assault Programs, Inc. so that they can get help. There are options for reporting an assault , both criminally and civilly, and victim advocates can help them navigate those options while getting the emotional support to bolster their mental health and well-being while they move forward. If you are a parent of a minor, it may be prudent to explain that engaging in sexual activity with anyone under the age of consent is illegal in New Mexico, though there are certain exceptions. There are also a number of local resources where your child can talk to someone confidentially, including the eight Rape Crisis Centers operated by the New Mexico Coalition of Sexual Assault Programs, Inc. It’s the job of parents to teach their children how to avoid becoming a victim of sexual abuse or assault, but if the unthinkable does happen, let them know that it’s important to speak out and go through the proper legal channels to get the help they need.