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  • What Are the Best Defenses for Child Exploitation in New Mexico?

    Posted on by JACK MKHITARIAN

    What Are the Best Defenses for Child Exploitation in New MexicoA conviction for child exploitation charges could have life-altering consequences beyond any punishments meted out by the court. After potentially serving a lengthy prison sentence, you could run into difficulty with immigration issues, finding a job, furthering your education, or obtaining a professional license. Also, you could have difficulty finding suitable housing—especially if you have to register as a sex offender, and the judge could limit the people you associate with. 

    How can you avoid those harsh consequences if you face child exploitation charges? The best course of action you can take to protect yourself against allegations of child exploitation is to align yourself with a skilled, experienced, and aggressive criminal defense lawyer. Our criminal defense lawyers with New Mexico Criminal Law Offices have earned their reputations as aggressive, hard-nosed defense lawyers with unparalleled work ethics. Contact us today to explore the best defenses for child exploitation in New Mexico.

    What Is Child Exploitation in New Mexico?

    New Mexico has enacted the Sexual Exploitation of Children Act (“the Act”). Legislators designed the Act to combat the irreparable harm a child suffers when sexually exploited. In summary, the Act criminalizes exploiting children for sexual gratification by people creating, manufacturing, producing, distributing, or possessing child pornography.

    The age of the person depicted is an essential element of the offense. As such, the law defines a child as a person under the age of 18. 

    Punishments: Fourth-Degree Felony for Child Exploitation 

    It is a fourth-degree felony to intentionally possess any obscene material or print medium showing at least one child engaged in a prohibited sexual act or simulation. To qualify as this level of offense, you must have known, or you should have known, that the visual material depicts a child.

    The basic sentence is 10 years in prison unless the child is younger than 13. In that case, the statute increases the basic penalty by one year and states that the first year of the sentence is a minimum-mandatory sentence. That means you must serve at least one year, day for day, without parole. Moreover, the judge cannot defer your sentence or put you on probation instead of sending you to prison.

    Second and Third-Degree Felony Child Exploitation

    The penalties increase in severity as the severity of the crime increases. Distributing material knowing or having reason to know the images depict a child performing a prohibited sexual act is a third-degree felony for child exploitation. The basic prison sentence for this offense is 11 years. 

    Manufacturing obscene material depicting a child engaged in prohibited sexual acts is a second-degree felony for the exploitation of children. The basic sentence is 12 years in prison. 

    Causing or permitting a child to engage in a prohibited or simulated sexual act knowing or having reason to know the act will be recorded or performed publicly, is a third-degree felony. However, the sentence elevates a second-degree felony for sexual exploitation if the child is under 13.

    Sexual Exploitation of Children by Prostitution

    Receiving money or other financial benefits for a child under 16 engaging in prohibited sexual acts is a second-degree felony. The basic sentence for a second-degree felony is nine years in prison. The charge becomes a first-degree felony if the child is younger than 13, and the basic sentence rises to 18 years in prison. 

    Hiring or offering to hire a child under 16 to perform a prohibited sexual act is a second-degree felony. Finally, a parent or guardian commits a third-degree felony for permitting a child under 16 to participate in a prohibited sexual act or simulation for the purposes of producing a visual medium depicting the child in such an act. Third-degree felonies in New Mexico carry a basic sentence of three years in prison. 

    Defense Arguments for Child Exploitation Charges

    An experienced criminal defense lawyer can only determine the best child exploitation defense for your case after thoroughly reviewing the facts and circumstances. For instance, the Act lists an affirmative defense for a person under 18. 

    A person under 18 who possesses what would otherwise be child pornography cannot face child exploitation charges if the child depicted is at least 14 years old. The child knowingly and voluntarily consented to possession of the material. For this defense to apply, there are two additional requirements. 

    • First, the child depicted must knowingly and voluntarily consent to the creation of the depiction. 
    • Second, the child knowingly and voluntarily produced the depiction, and the child’s consent was not coerced. The person possessing the material will face prosecution if the child depicted was coerced.

    The Act created this defense to protect minors from facing the harmful effects of criminal prosecution when consenting children are “sexting” each other. Other defenses to your accusations include arguing that the prosecution has not proven its case beyond a reasonable doubt, entrapment, and rights violations. 

    Reasonable Doubt

    The State has the unwavering burden to prove you guilty beyond a reasonable doubt of every element of the offense charged. Missing one element means that you must receive a not guilty verdict. 

    Some elements of an offense are not attacked easily. Others, such as the accused’s mental state, are more susceptible to a successful challenge. For instance, the State has to prove that you knew or should have known the material sexually exploited children. If there was no way for you to know, you should receive an acquittal. 

    You might also be able to argue that you never actually possessed the indecent material. Possession must be knowing and voluntary. Clicking on an image and then immediately deleting it could provide you with a winning defense because quickly deleting a pornographic image depicting a child shows that you had no intent to possess it. 

    In rare instances, you can prove that the person depicted was not a minor and consented to the creation of the media. 


    New Mexico law recognizes entrapment as a complete defense to criminal charges. The entrapment defense essentially argues that the police enticed you to commit a crime that you otherwise would not have committed. In the context of a child exploitation case, you might be able to argue that the police behavior caused you to receive child pornography or distribute it. 

    The entrapment defense is tricky because you have to admit that you committed a crime but argue that you would not have committed it unless the police coerced you. A highly-skilled criminal defense lawyer can explain the risks and potential rewards of the entrapment defense.

    Rights Violations

    Child exploitation cases often involve police searches and interviews of suspects. The police can only search your home with a warrant, absent extreme circumstances. You could have all of the evidence in your case suppressed if there was no warrant or exigent circumstances to justify the search. You could also get evidence suppressed if the search warrant was not based on probable cause. Similarly, a judge could throw your statements out of court if the police coerced you into making them or violated your Miranda rights.

    Contact New Mexico Criminal Law Offices Immediately

    Child exploitation charges are severe. You will need a skilled defense lawyer to defend you. Contact us today for a free case evaluation. We personalize each defense and work harder than all others to protect your rights.