N.M. Stat. § 30-37-3.2 (2026)

A. Child solicitation by electronic communication device consists of a person
knowingly and intentionally soliciting a child under sixteen years of age, by means of an
electronic communication device, to engage in sexual intercourse, sexual contact or in a
sexual or obscene performance, or to engage in any other sexual conduct when the
perpetrator is at least four years older than the child.

    B. Whoever commits child solicitation by electronic communication device is guilty
of a:

       (1)    fourth degree felony if the child is at least thirteen but under sixteen years
of age; or

       (2)    third degree felony if the child is under thirteen years of age.

    C. Whoever commits child solicitation by electronic communication device and also
appears for, attends or is present at a meeting that the person arranged pursuant to the
solicitation is guilty of a:

       (1)    third degree felony if the child is at least thirteen but under sixteen years of
age; or

       (2)    second degree felony if the child is under thirteen years of age.

    D. In a prosecution for child solicitation by electronic communication device, it is not
a defense that the intended victim of the defendant was a peace officer posing as a
child under sixteen years of age.

    E. For purposes of determining jurisdiction, child solicitation by electronic
communication device is committed in this state if an electronic communication device
transmission either originates or is received in this state.

   F. As used in this section, "electronic communication device" means a computer,
video recorder, digital camera, fax machine, telephone, cellular telephone, pager, audio
equipment or any other device that can produce an electronically generated image,
message or signal.
History: Laws 1998, ch. 64, § 1; 2005, ch. 295, § 1; 2007, ch. 68, § 3.

                                     ANNOTATIONS

The 2007 amendment, effective July 1, 2007, defined the crime of child solicitation by
electronic communication device; prescribed penalties for child solicitation by electronic
communication device; added a new Subsection C to provide penalties for persons who
commit child solicitation by electronic communication device and who attends or is
present at a meeting that the offender arranged pursuant to the solicitation; and defined
"electronic communication device".

The 2005 amendment, effective July 1, 2005, deleted the former provision of
Subsection A which defined the crime of dissemination of material that is harmful to a
minor by computer; created the crime of child solicitation by computer and designated
the crime as a fourth degree felony in Subsection A; deleted former Subsection C which
provided defenses to the crime of dissemination of material that is harmful to a minor by
computer; deleted former Subsection D which provided that it is not a violation of this
section for a person to provide access or connection to or from a facility or system or
network not under the person's control; deleted former Subsection E which provided
that limitation of former Subsection D does not apply to a conspirator with an entity that
creates or disseminates indecent material by computer or advertises the availability of
indecent material by computer or apply to a person who provides access or connection
to a facility, system or network that disseminates indecent material by computer owned
or controlled by the person; added Subsection B to provide that in a prosecution for
child solicitation by computer it is not a defense that the victim was a peace officer; and
added Subsection C to provide that child solicitation by computer is committed in New
Mexico if a computer transmission originates or is received in New Mexico.

Not unconstitutional under the first amendment. — Section 30-37-3.2 NMSA 1978,
which prohibits the solicitation of children to engage in sexual conduct, is narrowly
tailored to the compelling interest of protecting children from online sexual predators
and is not unconstitutional under the first amendment. State v. Ebert, 2011-NMCA-098,
150 N.M. 576, 263 P.3d 918.

Not unconstitutionally overbroad. — The failure of Section 30-37-3.2 NMSA 1978 to
include an "unlawful" element of the crime of child solicitation by computer does not
render the statute unconstitutionally overbroad. State v. Ebert, 2011-NMCA-098, 150
N.M. 576, 263 P.3d 918.

Not unconstitutionally vague as applied. — Where defendant was communicating by
computer with a person whom defendant believed to be a twelve-year-old child and
defendant requested the "child" to masturbate, Section 30-37-3.2 NMSA 1978 clearly
applied to defendant’s conduct and was not unconstitutionally vague. State v. Ebert,
2011-NMCA-098, 150 N.M. 576, 263 P.3d 918.
Child solicitation by electronic communication device statute is not void for
vagueness. — Where defendant was charged with two counts of child solicitation by
electronic communication device, and where defendant argued that § 30-37-3.2 NMSA
1978 should be declared void for vagueness because the statute does not provide clear
notice of what is prohibited or there a re no clear standards as to what is prohibited
and, as such, violates his due process rights, defendant's constitutional rights were not
violated because the conduct prohibited by the statute, solicitation of minors through
electronic communications, is straightforward such that a person of ordinary intelligence
using common sense would understand that § 30-37-3.2 prohibits an individual from
using an electronic device to knowingly and intentionally solicit a child under sixteen
years of age, to engage in the identified sexual acts, and when the individual is at least
four years older than the child. As applied in this case, § 30-37-3.2 provided fair warning
that defendant's conduct of sending the undercover officer, whom he believed to be a
fourteen-year-old girl, messages with instructions on how to masturbate and making
arrangements to meet with the child in order to engage in specific sexual acts, was
prohibited. State v. Julg, 2021-NMCA-058, cert. denied.

Not unconstitutional under the commerce clause. — Section 30-37-3.2 NMSA 1978
does not violate the commerce clause, because it applies evenhandedly to both in- and
out-of-state actors; applies only to communications that originate or are received in New
Mexico; addresses behavior relevant to its local purpose of preventing the sexual
exploitation of children; and does not impose any burden on legitimate interstate
commerce. State v. Ebert, 2011-NMCA-098, 150 N.M. 576, 263 P.3d 918.

Injunction against enforcement. — Because plaintiffs, a broad array of internet
content providers, were likely to prevail in their challenge to this section on grounds that
it violated the first, fifth and fourteenth amendments to the United States constitution,
and the commerce clause thereof, they were entitled to a preliminary injunction
enjoining its enforcement. ACLU v. Johnson, 4 F. Supp. 2d 1029 (D.N.M. 1998), aff'd,
194 F.3d 1149 (10th Cir. 1999).

Defense of entrapment rejected. — Under the subjective approach to the defense of
entrapment, the focus is on the defendant’s intent or predisposition to commit the crime,
with the prosecution bearing the burden of proving to the fact-finder that the defendant
was predisposed to commit the crime; where the prosecution proves that the defendant
was predisposed to commit the crime and the police merely provided an opportunity to
commit a crime that is free of police inducement and overreach, and the defendant
avails himself of the opportunity, the subjective entrapment defense must fail. State v.
Schaublin, 2015-NMCA-024, cert. denied, 2015-NMCERT-002.

Where defendant was convicted of child solicitation by electronic communication device;
and where the state presented evidence that the police presented an opportunity, via a
"women seeking men" Craigslist posting in which the online profile immediately
represented herself as a fifteen-year-old girl, and where defendant availed himself of the
opportunity presented by the police when he continued to communicate with the "fifteen-
year-old," even after having learned her age, and where defendant introduced sexuality
into the communications and arranged to meet the fifteen-year-old, defendant’s
willingness to engage in sexually explicit conversations with the online profile, which
was not the product of police overreach or improper inducement, was sufficient
evidence of defendant’s predisposition to commit the crime of child solicitation by
electronic device to support the jury’s rejection of his subjective entrapment defense.
State v. Schaublin, 2015-NMCA-024, cert. denied, 2015-NMCERT-002.

Entrapment as a matter of law. — Entrapment as a matter of law exists when there is
undisputed testimony which shows conclusively and unmistakably that an otherwise
innocent person was induced to commit the act or when the district court determines
that as a matter of law the police conduct exceeded the standards of proper
investigation. State v. Mendoza, 2016-NMCA-002.

Where defendant was convicted of child solicitation by electronic device, evidence that
law enforcement posted an ad in an adults-only section of a website and used an age-
regressed photo of an adult to accompany the false persona of a fifteen-year-old child,
who purportedly placed the ad, was insufficient to support defendant’s claim that he was
entrapped as a matter of law, when the evidence showed that defendant was made
aware at the outset that he was conversing with a fifteen-year-old child, that defendant
first introduced the subject of sex in his conversations with the fifteen-year-old child, and
where the record was void of any evidence that the police practices exceeded the
standards of proper investigation or were unconscionable. State v. Mendoza, 2016-
NMCA-002.

Notice requirements of § 30-37-4 NMSA 1978 do not apply to child solicitation by
electronic communication device. — Where defendant was charged with two counts
of child solicitation by electronic communication device, and where, prior to trial,
defendant filed a motion to dismiss in which he asserted that the "notice" requirement in
§ 30-37-4 NMSA 1978 was an essential element of the offense of child solicitation by
electronic communication device, and that the state was required, but failed, to make a
determination that the acts underlying defendant's charges were harmful to minors and
without such a determination, he could not have received actual or constructive notice
as required under § 30-37-4, and where the district court denied defendant's motion,
finding that the notice requirement in § 30-37-4 does not apply to this section and
defendant had constructive notice of the criminality of his actions from the clear
language of the child solicitation by electronic communication device statute, the district
court did not err in denying defendant's motion to dismiss because an examination of §
30-37-4 reveals that solicitation of minors through electronic communications, as
prohibited by this section, are not "matters" or "performances" subject to the notice
requirements of § 30-37-4. State v. Julg, 2021-NMCA-058, cert. denied.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Validity of state statutes and
administrative regulations regulating internet communications under commerce clause
and First Amendment of federal constitution, 98 A.L.R.5th 167.