N.M. Stat. Ann. § 30-9-10
A. "force or coercion" means:
F. "psychotherapist" means a person who is or purports to be a:
History: 1953 Comp., § 40A-9-20, enacted by Laws 1975, ch. 109, § 1; 1979, ch. 28, § 1; 1993, ch. 177, § 1; 2001, ch. 161, § 1; 2005, ch. 313, § 7.
The 2005 amendment, effective June 17, 2005, changed the name of the New Mexico school for the visually handicapped to the New Mexico school for the blind and visually impaired and changed the name of the Las Vegas medical center to the New Mexico behavioral institute at Las Vegas in Subsection H.
The 2001 amendment, effective July 1, 2001, added Subsection H and redesignated former Subsection H as Subsection I.
The 1993 amendment, effective July 1, 1993, in Subsection A, substituted "contact" for "conduct" near the beginning of Paragraph (4), redesignated the former second sentence of Paragraph (4) as the second undesignated paragraph of the subsection, added Paragraph (5), making a related grammatical change, and made stylistic changes; and added present Subsections C, F, and G, making related subsection redesignations.
Force or coercion. – Where defendant grabbed the victim’s breasts, causing pain and discomfort and squeezed the victim’s breasts so tightly that the victim was unable to breath, became dizzy, and was unable to escape from defendant’s grip, there was sufficient evidence to support a finding that defendant used force to sexually assault the victim. State v. Huff, 1998-NMCA-075, 125 N.M. 254, 960 P.2d 342, cert. denied, 125 N.M. 146, 958 P.2d 104.
Sufficient evidence of physical force. — Where defendant was convicted of two counts of criminal sexual penetration (CSP) in the second degree (child age 13-18) (force or coercion), and where defendant claimed that there was insufficient evidence from which "force or coercion" could be inferred, there was sufficient evidence to support the jury's determination that defendant perpetrated CSP by the use of "force or coercion," because "force or coercion" is conduct of the defendant that provides evidence of the elements of lack of consent and involuntary penetration of the victim, and in this case, the evidence was more than sufficient to support the jury's finding that defendant penetrated the victim against her will, and therefore by the use of "physical force." State v. Calderon, 2026-NMCA-026.
Defendant was not entitled to his requested mistake of fact instruction under the state's incapacity theory of criminal sexual penetration. — Where defendant was charged with two counts of criminal sexual penetration based on two alternative theories of force or coercion, that defendant knew or had reason to know, based on the victim's severe intoxication, that the victim was unconscious, asleep or otherwise physically helpless or suffered from a mental condition that rendered the victim incapable of understanding the nature or consequences of the sexual penetration or that defendant used physical force or physical violence to penetrate the victim without consent, defendant was not entitled to his requested mistake-of-fact instruction under the state's incapacity theory because the state's incapacity instruction encapsulated defendant's argued mistake of fact, that he did not know, and could not have known, that the victim was too intoxicated to consent. The jury was therefore adequately instructed on defendant's identified mistake of fact – whether defendant knew or should have known of the victim's incapacity to consent. State v. Apodaca, 2025-NMSC-015, rev'g 2021-NMCA-001, 482 P.3d 1224.
Defendant was not entitled to his requested mistake of fact instruction under the state's express non-consent theory of criminal sexual penetration. — Where defendant was charged with two counts of criminal sexual penetration based on two alternative theories of force or coercion, that defendant knew or had reason to know, based on the victim's severe intoxication, that the victim was unconscious, asleep or otherwise physically helpless or suffered from a mental condition that rendered the victim incapable of understanding the nature or consequences of the sexual penetration or that defendant used physical force or physical violence to penetrate the victim without consent, defendant was not entitled to his requested mistake-of-fact instruction under the state's express non-consent theory, because the express non-consent theory presumes that a victim had the legal capacity to consent and the only question remaining is one of fact, whether the victim actually consented. Since the express non-consent theory presumed that the victim had the legal capacity to consent, defendant's awareness of the victim's incapacity was not material to that theory. State v. Apodaca, 2025-NMSC-015, rev'g 2021-NMCA-001, 482 P.3d 1224.
Mental anguish. – Expert testimony concerning the victim’s mood swings from depression to anger, the victim’s emotional inability to re-enroll in school, indications that the victim had started drinking more to block out what happened, and the victim’s plan to move in order to avoid bad memories and embarrassment was sufficient evidence to establish the element of mental anguish. State v. Barraza, 1990-NMCA-026, 110 N.M. 45, 791 P.2d 799, cert. denied, 109 N.M. 704, 789 P.2d 1271.
Sufficient evidence of great mental anguish. — Where defendant was convicted of first-degree criminal sexual penetration (CSP), and where defendant claimed that the state failed to establish that the victim suffered great mental anguish as a result of the incident and that the evidence is therefore insufficient to support his conviction for first-degree CSP, evidence that the victim was over seventy years of age, that she moved to another state to live with her daughter because she felt unable to live alone, that she experienced constant flashbacks, and as a result had trouble concentrating and was unable to drive for a period of time, was sufficient to support a conclusion that the victim suffered great mental anguish as a result of the incident. State v. Sena, 2018-NMCA-037, rev'd in part by 2020-NMSC-011.
Position of authority. – Where defendant was considered by the victim as a father figure; defendant acted as a father figure in the presence of other people; defendant did chores at the request of the victim’s parent; defendant was entrusted by the victim’s parent to act as the victim’s guardian at times; defendant assumed the role of employer by allowing the victim to earn money at defendant’s place of business; and defendant was the trusted friend of the victim’s parent which allowed defendant to be alone with the victim when the victim spent the night at defendant’s house or went to the dump in defendant’s truck, the evidence was sufficient to support a finding that defendant exercised a position of authority over the victim. State v. Gipson, 2009-NMCA-053, 146 N.M. 202, 207 P.3d 1179.
"Position of authority" interpreted. — In 30-9-10(E) NMSA 1978, the legislature has designated certain relationships with a child that represent a "position of authority," and the language "who, by reason of that position, is able to exercise undue influence over a child" does not pertain to each of the types of position of authority listed in the definition. Under the definition of "position of authority", a household member is presumed to be able to exercise undue influence over a child such that additional proof concerning a perpetrator’s use or possession of such authority is not required. State v. Erwin, 2016-NMCA-032, cert. denied.
Where defendant, who was charged with criminal sexual contact of a child thirteen to eighteen years of age, did not dispute the evidence that he was a household member, but claimed that the state failed to prove that he used this position of authority to coerce the child to submit to sexual contact, the state was not required to prove that defendant, by reason of his position as a household member, was able to exercise undue influence over the child, because the legislature has designated certain relationships with a child, including a household member, that represent a position of authority for purposes of prosecution under 30-9-13 NMSA 1978. State v. Erwin, 2016-NMCA-032, cert. denied.
Phrase "unless the couple is living apart" is not void for vagueness when construed and applied in the ordinary sense to mean a suspension of the marital relationship. State v. Brecheisen, 1984-NMCA-011, 101 N.M. 38, 677 P.2d 1074, cert. denied, 101 N.M. 11, 677 P.2d 624.
Evidence of living apart. — Evidence supported finding that defendant and his wife were living apart at the time of an alleged attack by defendant upon his wife, where the wife testified that she felt she was living apart from defendant at the time of the attack, and there was evidence of the couple's physical separation and the defendant's securing other housing and paying one month's rent. Brecheisen v. Mondragon, 833 F.2d 238 (10th Cir. 1987), cert. denied, 485 U.S. 1011, 108 S. Ct. 1479, 99 L. Ed. 2d 707 (1988).
Consensual sex between therapist and adult patient. — A defendant's conduct did not constitute the crimes of second or third degree criminal sexual penetration because consensual sex between a therapist and his adult patient is not a crime. State v. Leiding, 1991-NMCA-043, 112 N.M. 143, 812 P.2d 797, cert. denied, 112 N.M. 77, 811 P.2d 575.
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).
For article, New Mexico Joins the Twentieth Century: The Repeal of the Marital Rape Exemption, see 22 N.M.L. Rev. 551 (1992).
Am. Jur. 2d, A.L.R. and C.J.S. references. — Rape or similar offense based on intercourse with woman who is allegedly mentally deficient, 31 A.L.R.3d 1227.
Criminal responsibility for physical measures undertaken in connection with treatment of mentally disordered patient, 99 A.L.R.3d 854.
Necessity or permissibility of mental examination to determine competency or credibility of complainant in sexual offense prosecution, 45 A.L.R.4th 310.
Conviction of rape or related sexual offenses on basis of intercourse accomplished under the pretext of, or in the course of, medical treatment, 65 A.L.R.4th 1064.