As used in this act:
A. "minor" means any unmarried person who has not reached his eighteenth
birthday;
B. "nudity" means the showing of the male or female genitals, pubic area or
buttocks with less than a full opaque covering, or the depiction of covered male genitals
in a discernibly turgid state;
C. "sexual conduct" means acts of masturbation, homosexuality, sodomy, sexual
intercourse or physical contact with a person's clothed or unclothed genitals, pubic area,
buttocks or, if such person be female, breast;
D. "sexual excitement" means the condition of human male or female genitals when
in a state of sexual stimulation or arousal;
E. "sado-masochistic abuse" means flagellation or torture by or upon a person clad
in undergarments, a mask or bizarre costume, or the condition of being fettered, bound
or otherwise physically restrained;
F. "harmful to minors" means that quality of any description of representation, in
whatever form, of nudity, sexual conduct, sexual excitement or sado-masochistic abuse,
when it:
(1) predominantly appeals to the prurient, shameful or morbid interest of
minors; and
(2) is patently offensive to prevailing standards in the adult community as a
whole with respect to what is suitable material for minors; and
(3) is utterly without redeeming social importance for minors; and
G. "knowingly" means having general knowledge of, or reason to know, or a belief
or reasonable ground for belief which warrants further inspection or inquiry or both, of:
(1) the character and content of any material described herein, which is
reasonably susceptible of examination by the defendant;
(2) the age of the minor.
History: 1953 Comp., § 40-50-1, enacted by Laws 1973, ch. 257, § 1.
ANNOTATIONS
Cross references. — For provisions regarding other sexual offenses, see 30-9-10 to
30-9-17 NMSA 1978.
Compiler's notes. — The term "this act" means Laws 1973, Chapter 257, which
appears as 30-37-1, 30-37-2, 30-37-3, 30-37-4 to 30-37-8 NMSA 1978.
General/specific rule did not apply. — Where defendant, who was convicted of
contributing to the delinquency of a minor when defendant wrote a sexually explicit letter
to the victim, claimed that under the general/specific rule, the State was required to
charge defendant under the sexually oriented materials statute, Section 30-37-2 NMSA
1978, rather than under Section 30-6-3 NMSA 1978; the general/specific rule states that
if one statute deals with a subject in general and comprehensive terms and another
statute addresses part of the same subject matter in a more specific manner, the latter
controls; the contributing to the delinquency of a minor statute requires that the material
encourage delinquency; and the sexually oriented materials statute only requires the
knowing delivery of harmful materials to a minor, the general/specific rule did not apply
because the statutory elements of the statutes were not the same and defendant’s
conviction did not violate the general/specific rule. State v. Garcia, 2013-NMCA-005,
294 P.3d 1256, cert. granted, 2012-NMCERT-012.
Validity of separate classifications for minors and adults for purposes of legislative
control has been explicitly recognized. 1973 Op. Att'y Gen. No. 73-54.
Am. Jur. 2d, A.L.R. and C.J.S. references. — Validity, construction and effect of
statutes or ordinances prohibiting the sale of obscene materials to minors, 93 A.L.R.3d
297.
Gesture as punishable obscenity, 99 A.L.R.3d 762.
Obscenity prosecutions: statutory exemption based on dissemination to persons or
entities having scientific, educational, or similar justification for possession of such
materials, 13 A.L.R.5th 567.
Notes of Decisions
Cited in
13
cases (
3 in the last 5 years), 1986–2025 · leading case:
State v. Luna, 458 P.3d 457 (N.M. Ct. App. 2018).
State v. Luna, 458 P.3d 457 (N.M. Ct. App. 2018).
· cites it 7× “See NMSA 1978, § 30-37-1 (1973) (defining terms 4 “[a]s used in this act”).”
State v. Dinapoli, 2015-NMCA-066.
“{17} The DVD covers were enough to raise a reasonable question concerning whether the DVDs contained “sexually oriented” material.”
State v. Johnson, 722 P.2d 681 (N.M. Ct. App. 1986).
“: NMSA 1978, sections 30-37-1 to -8 (Repl.Pamp.1980), proscribing sexually oriented material harmful to minors; and NMSA 1978, sections 30-38-1 & -2 (Repl.”
United States v. Streett, 363 F. Supp. 3d 1212 (D.N.M. 2018).
· cites it 3× “" N.M. Stat. Ann. § 30-37-1 (C). 151. Hartsock states that, in his "training and experience[,] a person does not try to gain child pornography only once and one way," and thus he "seeks to ensure no photographs were received from our victim that would violate further law of…”
State v. Luna, No. A-1-CA-34709 (N.M. Ct. App. Dec. 13, 2017).
· cites it 7× “See NMSA 1978, § 30-37-1 (1973) (defining terms 2 “[a]s used in this act”).”
State v. Dinapoli, 2015-NMCA-066, 8 N.M. Ct. App. 110.
· cites it 2× “¶ 25 (alteration and omission in original). {17} The DVD covers were enough to raise a reasonable question concerning whether the DVDs contained “sexually oriented” material.”
State v. Tufts, 2016-NMSC-020.
· cites it 2× “See NMSA 1978, § 30-37-1(C), (F)(1) (1973) (defining what sexually oriented material is harmful to minors as including an act of “masturbation” that “predominantly appeals to the prurient .”
State v. Julg, 2021-NMCA-058, 497 P.3d 678.
· cites it 7× “Act (the Act), NMSA 1978, §§ 30-37-1 to -10 (1973, as amended through 2007).”
Am. Booksellers Ass'n, Inc. v. Schiff, 649 F. Supp. 1009 (D.N.M. 1986).
“Thus, there has been no prerequisite determination that any material is “harmful to minors” in accordance with § 30-37-1(F); nor is there any indication that such a determination is imminent.”
State v. Kleinegger (N.M. Ct. App. 2021).
· cites it 2× “sexual conduct when the perpetrator is at least four years older than the child” (emphasis added)); NMSA 1978, § 30-37-1(G)(2) (1973) (defining “knowingly” to include “having general knowledge of, or reason to know, or a belief or reasonable ground for belief which warrants…”
State v. Balding (N.M. Ct. App. 2025).
· cites it 2× “2(C), the jury had to find that he “knowingly and intentionally solicited a child to engage in sexual intercourse, sexual conduct[,] .”
State v. Green, No. 31,787 (N.M. Ct. App. Sept. 22, 2014).
· cites it 2× “Moreover, each such category was included within the many images collected by Defendant on his laptop hard drive.”
N.M. Stat. § 30-37-1(B): 2 cases
State v. Luna, 458 P.3d 457 (N.M. Ct. App. 2018).
“See NMSA 1978, § 30-37-1 (1973) (defining terms 4 “[a]s used in this act”).”
State v. Luna, No. A-1-CA-34709 (N.M. Ct. App. Dec. 13, 2017).
“See NMSA 1978, § 30-37-1 (1973) (defining terms 2 “[a]s used in this act”).”
N.M. Stat. § 30-37-1(C): 5 cases
State v. Dinapoli, 2015-NMCA-066.
“{17} The DVD covers were enough to raise a reasonable question concerning whether the DVDs contained “sexually oriented” material.”
State v. Dinapoli, 2015-NMCA-066, 8 N.M. Ct. App. 110.
“¶ 25 (alteration and omission in original). {17} The DVD covers were enough to raise a reasonable question concerning whether the DVDs contained “sexually oriented” material.”
State v. Tufts, 2016-NMSC-020.
“See NMSA 1978, § 30-37-1(C), (F)(1) (1973) (defining what sexually oriented material is harmful to minors as including an act of “masturbation” that “predominantly appeals to the prurient .”
State v. Green, No. 31,787 (N.M. Ct. App. Sept. 22, 2014).
“Moreover, each such category was included within the many images collected by Defendant on his laptop hard drive.”
N.M. Stat. § 30-37-1(F): 4 cases
State v. Luna, 458 P.3d 457 (N.M. Ct. App. 2018).
“See NMSA 1978, § 30-37-1 (1973) (defining terms 4 “[a]s used in this act”).”
State v. Julg, 2021-NMCA-058, 497 P.3d 678.
“Act (the Act), NMSA 1978, §§ 30-37-1 to -10 (1973, as amended through 2007).”
Am. Booksellers Ass'n, Inc. v. Schiff, 649 F. Supp. 1009 (D.N.M. 1986).
“Thus, there has been no prerequisite determination that any material is “harmful to minors” in accordance with § 30-37-1(F); nor is there any indication that such a determination is imminent.”
State v. Luna, No. A-1-CA-34709 (N.M. Ct. App. Dec. 13, 2017).
“See NMSA 1978, § 30-37-1 (1973) (defining terms 2 “[a]s used in this act”).”
N.M. Stat. § 30-37-1(G): 1 case
State v. Balding (N.M. Ct. App. 2025).
“2(C), the jury had to find that he “knowingly and intentionally solicited a child to engage in sexual intercourse, sexual conduct[,] .”
N.M. Stat. § 30-37-1(G)(2): 1 case
State v. Kleinegger (N.M. Ct. App. 2021).
“sexual conduct when the perpetrator is at least four years older than the child” (emphasis added)); NMSA 1978, § 30-37-1(G)(2) (1973) (defining “knowingly” to include “having general knowledge of, or reason to know, or a belief or reasonable ground for belief which warrants…”
Annotations are extracted automatically from the opinions in the
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