N.M. Stat. § 30-9-10 (2026)

As used in Sections 30-9-10 through 30-9-16 NMSA 1978:

   A. "force or coercion" means:

       (1)    the use of physical force or physical violence;

       (2)    the use of threats to use physical violence or physical force against the
victim or another when the victim believes that there is a present ability to execute the
threats;

        (3)    the use of threats, including threats of physical punishment, kidnapping,
extortion or retaliation directed against the victim or another when the victim believes
that there is an ability to execute the threats;

       (4)    the perpetration of criminal sexual penetration or criminal sexual contact
when the perpetrator knows or has reason to know that the victim is unconscious,
asleep or otherwise physically helpless or suffers from a mental condition that renders
the victim incapable of understanding the nature or consequences of the act; or

       (5)   the perpetration of criminal sexual penetration or criminal sexual contact
by a psychotherapist on his patient, with or without the patient's consent, during the
course of psychotherapy or within a period of one year following the termination of
psychotherapy.

   Physical or verbal resistance of the victim is not an element of force or coercion;

   B. "great mental anguish" means psychological or emotional damage that requires
psychiatric or psychological treatment or care, either on an inpatient or outpatient basis,
and is characterized by extreme behavioral change or severe physical symptoms;

   C. "patient" means a person who seeks or obtains psychotherapy;

   D. "personal injury" means bodily injury to a lesser degree than great bodily harm
and includes, but is not limited to, disfigurement, mental anguish, chronic or recurrent
pain, pregnancy or disease or injury to a sexual or reproductive organ;

    E. "position of authority" means that position occupied by a parent, relative,
household member, teacher, employer or other person who, by reason of that position,
is able to exercise undue influence over a child;
   F. "psychotherapist" means a person who is or purports to be a:

       (1)    licensed physician who practices psychotherapy;

       (2)    licensed psychologist;

       (3)    licensed social worker;

       (4)    licensed nurse;

       (5)    counselor;

       (6)    substance abuse counselor;

       (7)    psychiatric technician;

       (8)    mental health worker;

       (9)    marriage and family therapist;

       (10)   hypnotherapist; or

      (11) minister, priest, rabbi or other similar functionary of a religious
organization acting in his role as a pastoral counselor;

  G. "psychotherapy" means professional treatment or assessment of a mental or an
emotional illness, symptom or condition;

    H. "school" means any public or private school, including the New Mexico military
institute, the New Mexico school for the blind and visually impaired, the New Mexico
school for the deaf, the New Mexico boys' school, the New Mexico youth diagnostic and
development center, the Los Lunas medical center, the Fort Stanton hospital, the New
Mexico behavioral health institute at Las Vegas and the Carrie Tingley crippled
children's hospital, that offers a program of instruction designed to educate a person in
a particular place, manner and subject area. "School" does not include a college or
university; and

    I. "spouse" means a legal husband or wife, unless the couple is living apart or
either husband or wife has filed for separate maintenance or divorce.

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.

                                        ANNOTATIONS
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.