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Fatal flaw: Drafting error sinks child sex crime bill

Copyright © 2019 Albuquerque Journal

New Mexico was poised this year to join a wave of states nationwide that are allowing victims of child sex crimes more time to report their perpetrators for possible criminal prosecution.

A last-minute clerical error derailed that effort – at least for this year.

Sen. Jeff Steinborn, D-Las Cruces

Gov. Michelle Lujan Grisham said she was forced to veto the legislation last month, because her legal team found a fatal flaw that would have given some victims even less time to report the crime than they have under current law.

The bill cleared its final legislative hurdle on the final day of the session that ended March 16 and was sent on to the governor.

“Nobody caught it before,” said the bill’s sponsor, Sen. Jeff Steinborn, D-Las Cruces. “If we had, it would have been an easy thing to fix.”

The governor’s veto message said she agreed with the premise of SB55, which was intended to extend the deadlines for prosecuting offenders who commit certain sexual assaults of children. But the version approved by the Legislature, Lujan Grisham wrote, “fails to achieve this goal due to what is likely a technical drafting error.”

Under the new legislation, for example, prosecutions for second-degree criminal sexual penetration of a child could have commenced any time until the victim reached age 30 – six years longer than provided by current law.

But the flawed final measure also inadvertently reduced the statute of limitations for prosecuting criminal sexual contact of a minor to within five or six years after the offense. Under current law, the victim could be up to 23 or 24 years old, depending on the degree of felony, before a prosecution is barred by the passage of time.

Steinborn said that in drafting revised legislation, someone forgot to include the offense of criminal sexual contact of a minor, which had been in prior versions. What was missing was the statute number, “30-9-13.”

The omission occurred “particularly late in the session when people are tired, working long hours, making amendments and when it’s something of this importance, criminal law just has to be perfect,” he said.

The key advocate of the bill, a 17-year-old from Las Cruces, Abrianna Morales, told lawmakers in committee hearings that she is a victim of sexual assault that occurred when she was 15. That criminal case is pending trial.

Abrianna Morales, 17, was a key advocate of the bill to give sex assault victims more time to report the crime to police. (Courtesy Photo)

“Thankfully, I was within the statute of limitations,” she told the Journal last week. “But very often, youth especially without financial independence or a car or even the knowledge of the legal system may not be able to report. And they don’t know about the statute of limitations and they turn 23 or 24 and they are on their own and independent and they are able to maturely come to terms with what happened and want to report.

“But then there’s this clock that ran out that they didn’t even know was running.”

Reform movement

Steinborn credits Morales, who has started a youth support network for sexual assault victims, for spurring him to introduce the measure to abolish the criminal statute of limitations for child sex crimes and abuse. Several other legislative attempts to extend such laws in New Mexico failed in recent years.

But so far in 2019, 37 states and Washington, D.C., have been considering some type of statute of limitations reform involving child sexual abuse. Nine jurisdictions have passed such reforms this year, according to Child USA, a national nonprofit think tank dedicated to protecting children and preventing abuse.

“There is a national movement to eliminate statute of limitations, both civil and criminal, for child victim crimes,” said Claire Harwell, legal director of New Mexico Coalition of Sexual Assault Programs Inc.

“So it’s not surprising that this is a moment in time when we did the best that we’ve ever done in terms of pushing this kind of legislation.”

Studies cited by her organization show that more than half, or 53%, of sexual assault survivors seeking services in New Mexico were under 18 years of age at the time of the assault.

Researchers also estimate that between 60% and 80% of victims of child sexual abuse do not disclose their abuse until adulthood, indicating that many may experience prolonged victimization or never receive treatment or services.

“The literature is pretty clear that the vast number of folks who have these traumatic experiences as children don’t disclose them until adulthood,” Harwell said.

Extending the statute of limitations, or eliminating it, she added, “allows crime victims who don’t have a shot at justice, a shot at justice. I feel like we owe people who we haven’t been able to protect as children access to justice as adults.”

Steinborn told the Journal he has learned that New Mexico “has one of the weaker, shorter statute of limitations laws” for sexual assaults of minors.

Under existing law, there is no statute of limitations for first degree criminal sexual penetration of a child under 13.

But for second degree, third and fourth degree child sex crimes, victims generally have a deadline from five to six years, depending on the felony level, after they reach the age of 18 or after they notify law enforcement.

Steinborn’s bill didn’t seek to change the statute of limitations period by which to file civil cases alleging child sexual abuse.

Initial bill weakened

Lujan Grisham, in her veto message, said she “was optimistic that the error in this bill will be corrected and returned to my office for consideration during the next legislative session.”

How the measure would fare in next year’s 30-day session isn’t clear.

The original bill proposed by Steinborn sought to abolish the criminal statute of limitations for child sex crimes altogether.

But during the committee review process, the New Mexico Criminal Defense Lawyers Association and the New Mexico Public Defender’s office opposed the original bill, arguing that the accused would have difficulty defending themselves at trial because of the passage of time.

Sen. Daniel Ivey-Soto, D-Albuquerque, proposed a compromise to permit such prosecutions involving victims up to the age of 35. That passed the Senate 25 to 14, but a House committee further reduced the age to 30.

Sen. Daniel Ivy-Soto, D-Albuquerque

“This is a significant issue that we grapple with,” Ivey-Soto told the Journal last week. “Personally, I sit right there in the intersection on how do we hold people accountable, but also have a system where people legitimately have a right to defend themselves? And 50 years later, it’s very difficult to be able to defend yourself.”

Advocates say victims of childhood sexual assault can keep memories of the trauma repressed for decades, sometimes never telling anyone.

A recent federal prosecution of a former New Mexico Catholic priest, Arthur Perrault, led to his conviction April 10 on federal aggravated sexual abuse charges involving an 11-year-old altar boy who said he was repeatedly molested from 1991 to 1992. The former altar boy, now 38, testified that he didn’t tell anyone of the abuse until 2014.

There is no criminal statute of limitations in the federal system for such crimes committed on federal property.

Through a spokesman, New Mexico Attorney General Hector Balderas told the Journal, “The legislature should not put deadlines on survivors of abuse seeking justice. While we were in favor of the initial version of SB 55, the later versions dramatically weakened key protections for child survivors.”

Balderas’ office in recent months has filed first-degree criminal sexual assault charges in state court against two former priests, one case involving the rape and kidnapping of a 6- to 7-year-old boy in the mid-1980s. The female victim in the other case was 9 years old at the time of the alleged rapes in the 1990s. Those cases can proceed because the two children were under age 13 at the time of the alleged crimes.

Sen. Richard Martinez, D-Espanola, is a former magistrate judge who chairs the Senate Judiciary Committee. He voted against the compromise bill, saying, “It’s very easy to accuse, but to prove is another thing after so many years.”

Yet, at an earlier hearing, Sen. Craig Brandt, R-Rio Rancho, told fellow members of the Senate Public Affairs Committee,”If the evidence is not there, the charge isn’t going to be brought. To see someone get away with this kind of crime because we put some kind of time limit on when they can be prosecuted is ridiculous and unconscionable.”

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