N.M. Stat. » N.M. Stat. / Chapter 30 / Article 10
New Mexico Statutes

N.M. Stat. § 30-10-3 (2026)

Incest.

✓ current as of May 2026
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Incest consists of knowingly intermarrying or having sexual intercourse with persons
within the following degrees of consanguinity: parents and children including
grandparents and grandchildren of every degree, brothers and sisters of the half as well
as of the whole blood, uncles and nieces, aunts and nephews.

   Whoever commits incest is guilty of a third degree felony.

History: 1953 Comp., § 40A-10-3, enacted by Laws 1963, ch. 303, § 10-3.

                                     ANNOTATIONS

Purpose of section. — This section is directed toward prohibiting sexual intercourse
between specific relations within the blood line. State v. Hargrove, 1989-NMSC-012,
108 N.M. 233, 771 P.2d 166.

Term "consanguinity" admits of only one plain meaning. It is the relationship by
descent from the same stock or common ancestor, related by blood. State v. Hargrove,
1989-NMSC-012, 108 N.M. 233, 771 P.2d 166.

Elements of offense. — The purpose of Laws 1917, ch. 50, § 1 (former 40-7-3, 1953
Comp.) was to prevent sexual intercourse between close relatives, and the free act of
the one being tried, with knowledge of the relationship, was all that was required, it
being immaterial that the same testimony would have sustained a conviction for rape.
State v. Hittson, 1953-NMSC-018, 57 N.M. 100, 254 P.2d 1063.

The free act of the one being tried, who has knowledge of the relationship, is required to
convict one of incest. State v. Hargrove, 1989-NMSC-012, 108 N.M. 233, 771 P.2d 166.

Failure to instruct the jury that it had to find beyond a reasonable doubt that defendant
had knowledge of the prohibited blood relationship was reversible error, where
defendant's testimony that he believed he did not father his "adopted daughter"
demonstrated that he did not concede that at the time they had intercourse he knew she
was his biological daughter. State v. Hargrove, 1989-NMSC-012, 108 N.M. 233, 771
P.2d 166.

Uncle/niece marriages. — New Mexico's public policy against incest did not preclude
the district court from awarding a mother primary physical custody of her children, after
taking into account her plans to marry her uncle, where that choice was in the best
interests of the children, and mother and uncle intended to reside in California.
Leszinske v. Poole, 1990-NMCA-088, 110 N.M. 663, 798 P.2d 1049, cert. denied, 110
N.M. 533, 797 P.2d 983.

Separate counts of incest and criminal sexual penetration. — There was no error in
charging defendant on separate counts of criminal sexual penetration and incest under
a theory that he had sexual intercourse with a child under 13 years of age and a child
between 13 and 16 years of age, and he knew each was his biological daughter. State
v. Hargrove, 1989-NMSC-012, 108 N.M. 233, 771 P.2d 166.

Polygraph test results. — In prosecution for incest, it was reversible error for trial court
to admit into evidence the results of a polygraph test over objection of the defendant,
despite the fact that defendant had signed a waiver agreeing to be bound by the results
of the test. State v. Trimble, 1961-NMSC-076, 68 N.M. 406, 362 P.2d 788.

Double jeopardy. — There is no double jeopardy impediment to convicting and
sentencing a defendant to consecutive terms for both incest and criminal sexual
penetration arising out of the same act. Swafford v. State, 1991-NMSC-043, 112 N.M. 3,
810 P.2d 1223.

Law reviews. — For article, "The Perils of Intestate Succession in New Mexico and
Related Will Problems," see 7 Nat. Resources J. 555 (1967).

For article, "New Mexico's 1969 Criminal Abortion Law," see 10 Nat. Resources J. 591
(1970).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 41 Am. Jur. 2d Incest § 1 et seq.

Adoption, relationship created by, as within statute regarding incest, 151 A.L.R. 1146.

Consent as element of incest, 36 A.L.R.2d 1299.

Prosecutrix in incest case as accomplice or victim, 74 A.L.R.2d 705.

Incest as included within charge of rape, 76 A.L.R.2d 484.

Admissibility, in incest prosecution, of evidence of alleged victim's prior sexual acts with
persons other than accused, 97 A.L.R.3d 967.
Crimes against spouse within exception permitting testimony by one spouse against
other in criminal prosecution - modern state cases, 74 A.L.R.4th 223.

Sexual intercourse between persons related by half blood as incest, 34 A.L.R.5th 723.

42 C.J.S. Incest §§ 2 to 6.
Notes of Decisions
Cited in 10 cases (1 in the last 5 years), 1989–2026 · leading case: State v. Frazier, 164 P.3d 1 (N.M. 2007).
Sort: Relevance Newest Treatment
State v. Frazier, 164 P.3d 1 (N.M. 2007). · cites it 4× “See NMSA 1978, § 30-9-11 (2003) (criminal sexual penetration); NMSA 1978, § 30-10-3 (1963) (incest). {25} Our opinion in Contreras , but for its cursory analysis of unitary conduct, also prefigures our decision here.”
State v. Hargrove, 771 P.2d 166 (N.M. 1989). · cites it 10× “NMSA 1978, Section 30-10-3 (Repl.Pamp.1984) states: “Incest consists of knowingly * * * having sexual intercourse with persons within the following degrees of consanguinity: parents and children * * See State v.”
Leszinske v. Poole, 798 P.2d 1049 (N.M. Ct. App. 1990). · cites it 12× “See NMSA 1978, § 30-10-3 (Repl.Pamp. 1984) (defining incest to include marriage or sexual intercourse between uncle and niece and making incest a crime); see also NMSA 1978, § 40-1-7 (Repl.”
Swafford v. State, 810 P.2d 1223 (N.M. 1991). · cites it 2× “1984), one count of incest, NMSA 1978, Section 30-10-3 (Repl.Pamp.1984), one count of aggravated assault with intent to commit a felony, NMSA 1978, Section 30-3-3 (Repl.”
State v. Nichols, 2006 NMCA 17 (N.M. Ct. App. 2005). · cites it 2× “THE STATE PRESENTED SUBSTANTIAL EVIDENCE OF ATTEMPTED CSP AND ATTEMPTED INCEST {5} Defendant first argues that the State failed to establish substantial evidence of counts four and five, charging attempted CSP under NMSA 1978, § 30-9-11 (2003), and attempted incest under NMSA…”
State v. Palmer, 957 P.2d 71 (N.M. Ct. App. 1998). · cites it 2× “{1} Defendant Jackie Palmer appeals his conviction on one count each of criminal sexual penetration, contrary to NMSA 1978, Section 30-9-11 (1993), incest, contrary to NMSA 1978, Section 30-10-3 (1963), and contributing to the delinquency of a minor, contrary to NMSA 1978,…”
Commonwealth v. Rahim, 805 N.E.2d 13 (Mass. 2004). “180 (2001); N.M. Stat. Ann. § 30-10-3 (Michie 2003); N.”
State v. Hall, 252 P.3d 770 (N.M. Ct. App. 2011). · cites it 3× “3 NMSA 1978; (9) enticement of child, as provided in Section 30-9-1 NMSA 1978; (10) incest, as provided in Section 30-10-3 NMSA 1978, when the victim is less than eighteen years of age; (11) solicitation to commit criminal sexual contact of a minor in the second, third or fourth…”
State v. Parra (N.M. Ct. App. 2019). · cites it 2× “ts of CSP, in violation of NMSA 1978, Section 30-9-11(D)(1) (2009); five counts of CSC, in violation of NMSA 1978, Section 30-9-12(C)(1) (1993); two counts of kidnapping, in violation of NMSA 1978, Section 30-4-1(A)(4) (2003); one count of interference with communications, in…”
State v. Eaker (N.M. 2026). · cites it 2× “BACKGROUND 16 {3} In July 2012, Defendant pleaded no contest to one count of criminal sexual 17 penetration (CSP) in the third degree, contrary to NMSA 1978, Section 30-9-11(F) 18 (2009), and one count of incest, contrary to NMSA 1978, Section 30-10-3 (1963). 1 Guided by the…”
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