34.5.2 CRIMINAL SEXUAL CONTACT OF A MINOR
Under §30-9-13, the elements of criminal sexual contact of a minor are:
Unlawfully and intentionally touching or applying force to the intimate parts of a minor, or
Unlawfully and intentionally causing a minor to touch another's intimate parts.
"Intimate parts" means the primary genital area, groin, buttocks, anus or breast. §30-9-13. "Primary genital area" is defined in Criminal UJI 14-981.
Second Degree. Criminal sexual contact of a minor in the second degree is a new offense consisting of criminal sexual contact of the unclothed intimate parts of the minor in the situations described for the third degree below. Anyone convicted is guilty of a second degree felony for a sexual offense against a child, with mandatory imprisonment for at least three years. 2003 1st Spec. Sess. Chapter 1.
Third Degree. Criminal sexual contact of a minor in the third degree occurs when either:
The minor is under age 13; or
The minor is age 13 up to age 18; and the perpetrator:
Is in a position of authority over the minor and uses this authority to coerce the minor to submit, see State v. Trevino, 113 N.M. 804, 806-807 (Ct. App. 1991); State v. Orosco, 113 N.M. 780, 786-787 (1992);
Uses force or coercion that results in personal injury to the child;
Uses force or coercion and is aided or abetted by one or more persons; or
Is armed with a deadly weapon.
Criminal sexual contact in the third degree is a third degree felony. §30-9-13(A).
Fourth Degree. Criminal sexual contact of a minor in the fourth degree includes all criminal sexual contact that is not defined above. It occurs when:
The minor is age 13 up to age 18; and
The criminal sexual contact is perpetrated with force and coercion. Force or coercion is defined in §30-9-10(A) and does not require as an element of the crime that the victim physically or verbally resisted.
As of 2001, criminal sexual contact of a minor in the fourth degree also includes criminal sexual contact perpetrated on a child age 13 up to age 18 when the perpetrator is a school employee, school contract employee, school health service provider or school volunteer, and is at least 18 years of age, at least four years older than the child, and not the spouse of the child. This is the case if the perpetrator learns while performing services in or for a school that the child is a student in a school. §30-9-13(B)(2)
Criminal sexual contact of a minor in the fourth degree is a fourth degree felony. §30-9-13(B).
The state is required to prove unlawfulness as an element of the offense of criminal sexual contact of a minor. See State v. Osborne, 111 N.M. 654 (1991); State v. Landers, 115 N.M. 514 (Ct. App. 1992). For the touching to have been unlawful, it must have been done with the intent to arouse or gratify sexual desire or to intrude upon the bodily integrity or personal safety of the victim. If the touching was for purposes of reasonable medical care or nonabusive parental or custodial care, it is not unlawful. State v. Osborne, 111 N.M. at 660-661; UJI 14-984. The court in State v. Gardner, 2003-NMCA-107, 76 P.3d 47, reiterated that the desire to obtain sexual gratification was not necessary; the defendant may have intended otherwise to intrude on the victims’ bodily integrity. ¶24, 76 P.3d at 55.
