What is the Age of Consent in New Mexico?
The age of consent in New Mexico is defined as 16. Because of this, two people, either heterosexual or homosexual, can have sexual intercourse so long as one of the partners is 16 years old or older.
Any person who is under 13 years old cannot legally give consent to sexual relations with a partner, even if the minor is voluntarily participating in sexual activity, or that activity could be construed to be illegal and outside the age of consent. Because of this , any sexual relations with a minor under this age is defined as criminal sexual penetration of a minor and is a first degree felony in New Mexico.
If any person is at least 13 years old but younger than 16, they are defined as a minor and can only consent to engage in "unstimulated" sexual body contact. If the minor has not been married, or if the minor has been married or divorced, they are not legally able to consent to intercourse with someone who is at least 13 years older than them.
Historical Age of Consent Facts
The historical evolution of consent laws in New Mexico, as in the United States, reflects a society wrestling with the tension between the moral concerns of adolescent pregnancy and sexual health and the need to protect young people from abuse. The principle of setting a minimum age of consent to sexual acts has ancient roots. Early civilizations, including those of Ancient Egypt and Mesopotamia, recognized the concept of consent through arranged marriages, which were often arranged at a young age. However, our modern understanding of consent emerged more recently, in the fifteenth century, within the context of established canon laws addressed by Catholic Church. Since that time, the age of consent in exchange for sexual activity (and particularly intercourse) has increased in most European deliberations and in many countries in the Americas.
The medieval concept of marriage as a uniting of two families regards the maturity of the wife as a secondary, if even necessary consideration, to the social manipulation of political alliances and economic contracts between families. During this time period, the age of consent was c. 12, sometimes 7 years of age. (Ancient Egyptian law had a minimum age of 14 years.) This concept of marriage was carried into the Spanish conquest of the Americas beginning in the 15th century. In addition, the Spanish royal crown applied the "Ley de Partidas," in the New World. Heavily influenced by the canon laws of the Catholic Church, the Spanish Crown required a minimum age of 12 years for the bride and 14 for the groom.
New Mexico was subsequently governed by Mexico (1821-1854), and then by the United States (1854-present). During its period as a territory of Mexico, the state of consent was 12 years for females and 14 years for men. After it became a state, the age of consent was set at 12 years in 1886; an age that stood until 1934, when the New Mexico State Legislature increased the age of consent to 16 years.
Implications of the Age of Consent
The legal ramifications of the age of consent can be significant. Charges that involve individuals below the age of consent are taken very seriously and can carry serious consequences. Legal consequences can include civil lawsuits as well as state criminal charges.
Charges Within New Mexico
The most common charge for violations involving the age of consent is often criminal sexual communication with a minor. This charge can also be referred to as solicitation of a minor and involves the solicitation and attempted engagement of a minor in sexual activity. In New Mexico, criminal sexual communication with a minor is still considered a crime, even if the other person is slightly above the age of consent.
In New Mexico, criminal sexual communication with a minor is a fourth-degree felony. Many fourth-degree felonies may carry a sentence of 18 months in prison, but criminal sexual communication with a minor carries a much harsher penalty. The sentence with this charge is 18 months of probation plus 9 to 18 months in prison. Not only that, but anyone who is charged with criminal sexual communication with a minor will also be required to register on the sex offender registry for the rest of their lives.
Charges Outside of New Mexico
With the rise of technology, soliciting minors and the issue of sexual communication with minors are not only limited to in-person interactions but also through technology. Statutory rape constitutes any type of sexual conduct with a minor. This may include any sort of physical conduct, however, it also includes intimacy of a minor over a computer or a smart phone. Most states across the country consider it a crime for an adult to engage in sexual activities with a minor, regardless of whether the minor gives consent or not. In certain states, these types of crimes fall under child pornography because the crime was committed over the Internet and involved a minor. Although the Circuit Court of Appeals for the Tenth Circuit has held this type of communication is protected under the First Amendment, the Supreme Court of the United States has previously disagreed and upheld that it is a crime to communicate sexually explicit messages to a minor.
Statutory Rape
Under New Mexico law, an individual can be charged with statutory rape if they have sexual intercourse with a minor who is younger than 13 years of age and offenders are typically charged with criminal sexual penetration of a minor in the first degree. Criminal penetration of a minor in the first degree who is over the age of 13 but younger than 16 may be charged with a fourth-degree felony.
Exceptions and Defenses to the Law
The Criminal Information Charge should be analyzed the same way, and that is beyond just whether the alleged victim engaged in sexual behavior with another person under 18 years of age or it is possible that the victim is over the age of consent (18), that the alleged victim was aged 13 or 14 years old when the sexual contact or penetration occurred and that the defendant was over the age of 18. In this situation, the State must prove that the sexual contact or penetration occurred and that the defendant was at least four years older than the victim. The State may not make a prima facie case for age of consent or the age of majority by establishing only that A is at least four years older than B. Therefore, the court has ruled that the state must provide evidence to the jury that the defendant and the victim were fourteen years old or older. The Nine District Court further issued an opinion providing more information on the meaning of the statutory language "four years older" which should be applied within this subsection of adult sexual offenses. While is this is a helpful guideline for Punishing or Eligibility for sentencing under a felony, it does not help in determining whether or not there is a valid legal defense or exception that may apply.
The statutory exceptions for close in-age exemptions are specific and include: a spouse who is 19 years old or older who has engaged in sexual intercourse with a spouse who is between the ages of sixteen and eighteen or has engaged in sexual contact with a spouse who is between the ages of thirteen and eighteen. An exception will exist for sexual offenses between consenting minors who are within "four years" of each other’s age. Other statutory exceptions exist for affirmative defenses to statutory rape – "Of Penetrating a minor under 13, 13 (age of consent) or older; and under 16 without permission of custodial parent". In these circumstances , the Court should find a violation or a possible violation of the "spousal rape due to misidentification and sentence as long as the defendant can argue a reasonable probability evidence supported upon 1. The accused was at least 19 and 2. There was proof of a voidable or voidable marriage and 3. That he had sexual intercourse with the other without the other’s agreement.
See New Mexico Statutes Annotated sections 30-9-11(F) which says: "An affirmative defense to a prosecution under Subsection B of this section is available if the defendant reasonably believed that the person with whom the defendant engaged in sexual penetration was 16 or 17 years old, that the person was married to the defendant, and that the person had a voidable or voidable marriage pursuant to the Domestic Relations Code [Chapter 40 NMSA 1978]." This means if the defendant is married to the victim then the defendant may have an affirmative defense no matter what the age of consent is.
There is an Affirmative Defense to Statutory Rape- (Faulkner v. State , 886 S.W.2d 486- Defendant older than 26 years old charged with statutory rape for allegedly having sex with 15 year old victim. Affidavit of victim states she was 18 years old at time of offense. Consent of victim is affirmative defense to prosecution). The defendant may argue that the alleged victim in the case did not give accurate information about age and that the defendant believed the victim was older than the age of consent.
In some cases, The State’s Subject Matter Jurisdiction may be challenged if the statute of limitations for the case has expired. The length of time for filing charges against the defendant (within the statute of limitations) would be important in determining if the State has jurisdiction over the alleged offense. The statute of limitations does not begin to run against the prosecution until the sexual assault report was formalized. The formalization would be "the proper "making" of the police report; it is not when the police conducted their preliminary investigation or when the police officers first encountered the alleged victim.
Consent and Emancipation
Even though the age of consent in New Mexico is 16, if one or both partners are under 18, parental consent is required. Therefore, if one of the partners is under 16, sex with that partner (or possession of sexual images) is a crime even if the other partner is an adult and a willing participant. Even with parental consent, however, consent can be revoked at any time, so a minor must always be aware that consent can be withdrawn. If consent is revoked by parents, siblings, or guardians, sex with the minor is then a crime. Even if parental consent is given for sexual activity, it does not relieve a person from responsibility for statutory rape so long as the laws of New Mexico have been violated. Alternatively, a person under the age of 18 may be declared emancipated, which allows a minor to live independently from parents. Minors as young as 14 can become emancipated, as long as they can prove that it is in their best interest. Parents must consent to the emancipation. In the case of a parental kidnapping, a minor can file for emancipation without parental consent. An emancipated minor may be considered legally competent to consent to sexual activity. Even if the Parents are forced into a situation contrary to the best interest of the minor, such as a divorce or premarital pregnancy, the parent may successfully petition for an emancipation.
How New Mexico Compares to Other States
New Mexico’s age of consent laws somewhat align with those of many other states. Like New Mexico, for example, Hawaii has an age of consent that is 16. Colorado’s, much like New Mexico’s, is slightly higher at 17. Arizona, a neighboring state, has a similar age of consent at 18.
States that have an age of consent that is a little higher than New Mexico’s include Texas at 17 and Utah at 18. Nebraska also shares an age of consent of 18, but the law there is a little more nuanced than it is in New Mexico. Nebraska law prevents 19- and 18-year-olds from having sex with their children who are less than 18. If they do so, law enforcement may try to charge any party involved with a class 2 misdemeanor. A second offense could be a class 3 felony.
Laws in other states differ from New Mexico’s considerably. In Alabama, for example , an underage child found to be engaging in sexual activity can have criminal charges filed against them. In Nevada, sexual activity between a person younger than 14 and an adult can be charged as a felony.
Some U.S. territories are a little different from the U.S. States that are different from their counterparts on the mainland include American Samoa, where the age of consent is 12 for both genders, and Puerto Rico, where the age of consent is 14.
In some cases, who can be charged with having sex with a minor could be based on age. For example, in Maryland, a crime is typically committed if a person over the age of 18 has sex with someone 16 years of age or younger. That’s not the case, though, if the 16- or 17-year-old is married. If the two parties who have sex are within four years of one another, then a charge of sexual contact would not apply.
