A. Criminal sexual contact is the unlawful and intentional touching of or application of force, without consent, to the unclothed intimate parts of another who has reached his eighteenth birthday, or intentionally causing another who has reached his eighteenth birthday to touch one's intimate parts.

B. Criminal sexual contact does not include touching by a psychotherapist on his patient that is:

(1) inadvertent;

(2) casual social contact not intended to be sexual in nature; or

(3) generally recognized by mental health professionals as being a legitimate element of psychotherapy.

C. Criminal sexual contact in the fourth degree consists of all criminal sexual contact perpetrated:

(1) by the use of force or coercion that results in personal injury to the victim;

(2) by the use of force or coercion when the perpetrator is aided or abetted by one or more persons; or

(3) when the perpetrator is armed with a deadly weapon.

Whoever commits criminal sexual contact in the fourth degree is guilty of a fourth degree felony.

D. Criminal sexual contact is a misdemeanor when perpetrated with the use of force or coercion.

E. For the purposes of this section, "intimate parts" means the primary genital area, groin, buttocks, anus or breast.

History: 1953 Comp., § 40A-9-22, enacted by Laws 1975, ch. 109, § 3; 1981, ch. 8, § 1; 1991, ch. 26, § 2; 1993, ch. 177, § 3.

Cross references. — For provision that testimony of victim hereunder need not be corroborated, see 30-9-15 NMSA 1978.

For limitations on testimony regarding victim's past sexual conduct, see 30-9-16 NMSA 1978.

For the Sex Offender Registration and Notification Act, see 29-11A-1 NMSA 1978.

The 1993 amendment, effective July 1, 1993, deleted the former second sentence of Subsection A, which defined "intimate parts"; added present Subsections B and E, redesignating the succeeding subsections accordingly; and made stylistic changes in Subsections A, C, and E.

The 1991 amendment, effective June 14, 1991, designated the formerly undesignated first paragraph as present Subsection A and redesignated former Subsections A and B as present Subsections B and C and, in present Subsection A, substituted "unlawful and intentional" for "intentionally" and deleted "and someone other than one's spouse" following "birthday" in two places in the first sentence and made a minor stylistic change in the second sentence.

Legislative intent. — The legislative intent in defining "intimate parts" with a listing of five separate protected areas was to protect the victim from intrusions to each enumerated part; separate punishments are sustainable where evidence shows distinctly separate touchings of different parts. State v. Williams, 1986-NMCA-122, 105 N.M. 214, 730 P.2d 1196, cert. denied, 105 N.M. 111, 729 P.2d 1365.

Statutory enumeration of different aggravating factors, or alternative methods of committing fourth degree criminal sexual contact, does not evince a legislative intent to authorize multiple punishments for the same act; where alternative methods of committing criminal sexual contact are submitted to the jury, the accused may be found guilty of only one offense. State v. Williams, 1986-NMCA-122, 105 N.M. 214, 730 P.2d 1196, cert. denied, 105 N.M. 111, 729 P.2d 1365.

Section compared with 30-9-11 NMSA 1978. — This section is a general statute prohibiting a touching of intimate parts, whereas 30-9-11 NMSA 1978 is a specific statute which prohibits a touching of the penis with the lips or tongue. Section 30-9-11 NMSA rather than this section was the applicable statute in a prosecution for fellatio because the specific statute prevails over the general statute. State v. Gabaldon, 1978-NMCA-077, 92 N.M. 93, 582 P.2d 1306.

Instruction on lesser included offense not warranted by the facts. — Where defendant was charged with aggravated sexual abuse; defendant broke into the victim's house; defendant, who was not wearing pants and who had a knife in defendant's hand, climbed on top of the victim, and ordered the victim to remove the victim's underwear; the victim felt defendant's erection; and the victim was told to tell the victim's friend who had entered the room that the victim was alright; during that time, defendant was continually using the knife to cut the victim's throat, defendant was not entitled to a jury instruction on the lesser included offense of sexual contact by use of a deadly weapon resulting in personal injury. United States v. Dennison, 937 F.2d 559 (10th Cir. 1991).

Evidence of "force". — The evidence was sufficient to establish the element of force necessary to sustain convictions for felony criminal sexual contact where the victim testified that the defendant, in the first incident, grabbed and squeezed her breasts causing her pain and discomfort and, in the second incident, squeezed her breasts so tightly that she was unable to breathe, became dizzy, and was unable to extricate herself from his grip. State v. Huff, 1998-NMCA-075, 125 N.M. 254, 960 P.2d 342, cert. denied, 125 N.M. 146, 958 P.2d 104.

"Groin" defined. — Not having defined "groin" in this section as it read prior to 1993 amendment, and nothing to the contrary appearing, the legislature is presumed to use the common meaning of "groin," which is the fold or depression marking the line between the lower part of the abdomen and the thigh; also, the region of this line. State v. Doe, 1979-NMCA-021, 93 N.M. 206, 598 P.2d 1166.

Evidence sufficient to sustain conviction. — A touching of the upper, inner thigh is a touching in the region of the line between the lower part of the abdomen and the thigh; the touching is a touching of the groin and, therefore, sufficient evidence to sustain a conviction of criminal sexual contact. State v. Doe, 1979-NMCA-021, 93 N.M. 206, 598 P.2d 1166.

Law reviews. — For symposium, "The Impact of the Equal Rights Amendment on the New Mexico Criminal Code," see 3 N.M.L. Rev. 106 (1973).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 6 Am. Jur. 2d Assault and Battery §§ 24 to 30, 41, 42, 55, 67, 106, 119, 156, 229.

Indecent proposal to woman as assault, 12 A.L.R.2d 971.

Sexual nature of physical contact as aggravating offense of assault and battery, 63 A.L.R.3d 225.

Modern status of admissibility, in forcible rape prosecution, of complainant's prior sexual acts, 94 A.L.R.3d 257.

Modern status of admissibility, in forcible rape prosecution, of complainant's general reputation for unchastity, 95 A.L.R.3d 1181.

Validity and construction of statute defining crime of rape to include activity traditionally punishable as sodomy or the like, 3 A.L.R.4th 1009.

Walking cane as deadly or dangerous weapon for purposes of statutes aggravating offenses such as assault and robbery, 8 A.L.R.4th 842.

Parts of the human body, other than feet, as deadly or dangerous weapons for purposes of statutes aggravating offenses such as assault and robbery, 8 A.L.R.4th 1268.

Entrapment defense in sex offense prosecutions, 12 A.L.R.4th 413.

Constitutionality, with respect to accused's rights to information or confrontation, of statute according confidentiality to sex crime victim's communications to sexual counselor, 43 A.L.R.4th 395.

Liability of church or religious society for sexual misconduct of clergy, 5 A.L.R.5th 530.