In New Mexico, the age of consent is 17 years old. If an adult (an individual over the age of 18) has sex with a minor between the ages of 13 and 16, the adult may be prosecuted for 4th degree criminal sexual penetration.

Different standards apply when the offender is in some position of trust or authority over the minor, such as a teacher, employer, or coach. In such situations, one should assume that the age of consent is 18, at the very least.

Are There Any Defenses If an Adult Is Accused of Criminal Sexual Penetration?

There are at least two statutory defenses to a prosecution of 4th degree criminal sexual penetration:

First, there is a “Romeo and Juliet” exception. Anyone between the ages of 13 and 16 can consent to sex with a person who is no more than 4 years their senior. However, nobody under the age of 13 can legally consent to sex in New Mexico, regardless of the age of the partner.

Second, there is a spousal exception. The minor’s spouse may legally have sex with the minor, although minors must be at least 16 years with parental consent or a family law judge approval to be married. If the minor is younger than 16, the minor may only be married if the minor is pregnant and a family law judge approves.

Third, New Mexico courts recognize a mistake of age defense. The mistake of age defense is basically “I thought she was 17.” However, this is no guarantee that this defense will work in court. Moreover, the mistake of age is the creation of judges in the absence of a direct statute addressing the defense. State lawmakers may pass a law overriding the courts on this issue at any time.

Finally, New Mexico courts have held that religious belief is not a defense to criminal sexual penetration. Defendants cannot claim Free Exercise protection if they have sex with a minor.

What Is the Penalty If an Adult Commits Criminal Sexual Penetration?

The penalties for violating these laws are comparatively lenient in New Mexico. Conduct which might carry a 20 year prison sentence in other states can be punished by 18 months in prison in New Mexico. The judge may also impose a $5,000 fine.

Seeking Legal Help

If you have been accused of having sex with a minor, you should consult with a criminal lawyer in New Mexico. Consulting with an experienced criminal attorney ensures you that your case is effectively represented in court. Your lawyer can help you understand your rights and can provide defenses for your case.