CITY of ALBUQUERQUE
TWENTY SEVENTH COUNCIL
COUNCIL BILL NO. O-26-48 ENACTMENT NO. ________________________
SPONSORED BY: Klarissa J. Peña
ORDINANCE
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Amending ROA 1994, Chapter 12, Article 1, Section 4 “Definitions” To Align With State Statute (Peña)
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AMENDING ROA 1994, CHAPTER 12, ARTICLE 1, SECTION 4 “DEFINITIONS” TO ALIGN WITH STATE STATUTE.
WHEREAS, pursuant to NMSA 1978, Section 30-9-11(A), “criminal sexual penetration” is defined as “the unlawful and intentional causing of a person to engage in sexual intercourse, cunnilingus, fellatio or anal intercourse or the causing of penetration, to any extent and with any object, of the genital or anal openings of another, whether or not there is any emission”; and
WHEREAS, pursuant to NMSA 1978, Section 30-9-13, “criminal sexual contact of a minor” is defined as “the unlawful and intentional touching of or applying force to the intimate parts of a minor or the unlawful and intentional causing of a minor to touch one’s intimate parts. For the purposes of this Section, "intimate parts" means the primary genital area, groin, buttocks, anus or breast”; and
WHEREAS, the City’s criminal code definitions of “criminal sexual penetration” and “criminal sexual contact of a minor” are based off previous definitions of these offenses and exclude criminal contact for an offender’s spouse; and
WHEREAS, the state statute definitions of “criminal sexual penetration” and “criminal sexual contact of a minor” have not included this previous definition that exclude criminal contact for an offender’s spouse since they were amended in 1991; and
WHEREAS, preemption principles forbid the City’s criminal code from providing a different definition of criminal acts.
BE IT ORDAINED BY THE COUNCIL, THE GOVERNING BODY OF THE CITY OF ALBUQUERQUE:
SECTION 1. ROA 1994, Section 12-1-4 is hereby amended as follows:
§ 12-1-4 DEFINITIONS.
For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
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CRIMINAL SEXUAL CONTACT OF A MINOR. Unlawfully and intentionally touching or applying force to the intimate parts of a minor or unlawfully and intentionally causing a minor to touch one's intimate parts. For purposes of this Section, INTIMATE PARTS means the primary genital area, groin, buttock, anus, or breast.
CRIMINAL SEXUAL PENETRATION. The unlawful and intentional causing of a person to engage in sexual intercourse, cunnilingus, fellatio or anal intercourse, or the causing of penetration, to any extent and with any object, of the genital or anal openings of another, whether or not there is any emission.
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SECTION 2. SEVERABILITY. If any section, paragraph, sentence, clause, word or phrase of this Ordinance is for any reason held to be invalid or unenforceable by any court of competent jurisdiction, such decision shall not affect the validity of the remaining provisions of this Ordinance. The Council hereby declares that it would have passed this Ordinance and each section, paragraph, sentence, clause, word or phrase thereof irrespective of any provision being declared unconstitutional or otherwise invalid.
SECTION 3. COMPILATION. SECTION 1 of this Ordinance amends, is incorporated in, and is to be compiled as part of the Revised Ordinances of Albuquerque, New Mexico, 1994.
SECTION 4. EFFECTIVE DATE. This Ordinance takes effect five days after publication by title and general summary.
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