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UNM Policy Office

MSC05 3357
1 University of New Mexico
Albuquerque, NM 87131

Physical Location:
Scholes Hall
114 A and B

Phone: (505) 277-6531

University of New Mexico Seal

Administrative Policies and Procedures Manual - Policy 2740: Sexual Violence and Sexual Misconduct

Date Originally Issued: 05-15-2015

Process Owner: Director, Office of Equal Opportunity

General

Title IX of the Education Amendments of 1972 (Title IX) is a federal civil rights law that prohibits discrimination on the basis of sex (including gender, sex stereotyping, and gender identity) in federally funded education programs and activities.  Sexual harassment, which includes acts of sexual violence and sexual misconduct, is a form of sex discrimination prohibited by Title IX. This policy on Sexual Violence and Sexual Misconduct applies to any allegation of sexual violence or misconduct made by or against a student, or a UNM staff or faculty member, regardless of where the alleged sexual violence or misconduct occurred.  If the circumstances giving rise to the complaint are related to UNM’s programs or activities, this policy may apply regardless of the affiliation of the parties.

Sexual violence and misconduct may be committed by anyone, including a stranger, an acquaintance, a friend, or someone with whom the victim is involved in an intimate or sexual relationship.   Individuals who have experienced sexual violence or misconduct are encouraged to report what happened to law enforcement and to seek assistance from any of the Campus Resource Offices or community resources listed in Section 9 of this policy.  A report of sexual violence or misconduct will be taken seriously and addressed in accordance with UNM policies and procedures.  The University's Title IX Coordinator is Heather Cowan of the Office of Equal Opportunity (OEO), who oversees institutional compliance with Title IX.

This policy includes information for students, staff, and faculty on resources available following an act of sexual violence or misconduct, UNM responses, education, and prevention programs and possible disciplinary sanctions.

Figure 1: Reporting Sexual Violence and Misconduct

If you are experiencing an emergency, call 911

If the incident occurred on the UNM campus, contact the UNM Police Department:

  • can be called 24 hours a day/365 days a year
  • can report online and, if desired, anonymously

(505) 277-2241
https://police.unm.edu/

Any student, faculty, or staff member who has experienced sexual violence or misconduct and wants help in notifying law enforcement can contact any Sexual Misconduct and Assault Response Team (SMART) responding office or agency for assistance

For more information on resources available to you, see Section 10 of this policy.


1. Reporting Sexual Violence

The University urges any individual who has experienced sexual violence or misconduct, or has knowledge about an incident of sexual violence or misconduct, to make an official report. In order for the University to respond effectively to individuals who have experienced sexual violence or misconduct, all UNM staff and faculty, except as noted in Section 7, who receive information about a person who has experienced sexual violence or misconduct must report the information to OEO within 24 hours, or as soon as reasonably practicable, by calling OEO at (505) 277-5251 or by email at oeounm@unm.edu. See Section 7 for more details, including how you can retain your anonymity when you report.


2. Definition of Sexual Violence and Sexual Misconduct

Sexual violence refers to physical sexual acts perpetrated with force or coercion against a person’s will; or where a person has not given consent as defined in this policy or is unable to consent due to his or her use of alcohol or drugs, or disability, or age. Sexual violence is a crime.

Sexual misconduct incorporates a range of behaviors, including sexual assault, sexual harassment, intimate partner violence, stalking, voyeurism, and any other conduct of a sexual nature that is nonconsensual, or has the purpose or effect of threatening, intimidating, or coercing a person.

Figure 2: Prohibited Actions

Examples of Prohibited Acts of Sexual Violence and Sexual Misconduct

Rape/sexual assault

Non-consensual oral sex

Sexual contact/battery

Sexual exploitation

Domestic violence

Domestic abuse

Dating violence

Stalking

Sexual harassment

For more information about prohibited actions, see below and Section 15 of this policy.

Prohibited actions include, but are not limited to:

  • Rape/sexual assault: non-consensual sexual intercourse (either vaginal or anal) with a penis, vagina, tongue, finger, or any object.
  • Non-consensual oral sex: non-consensual contact between one person’s mouth and the genitals or anus of another person.
  • Sexual contact/battery: non-consensual touching, kissing, or fondling of another person in a sexual way, whether the person is clothed or unclothed; or forcing someone to touch another in a sexual way.
  • Sexual exploitation: taking sexual advantage of another person without consent, including, without limitation, indecent exposure; voyeurism; non-consensual recording, photographing, or transmitting identifiable images of private sexual activity and/or the intimate parts of another person; and/or allowing third parties to observe private sexual acts.
  • Domestic violence: under state law, domestic violence is defined as felony and misdemeanor crimes under the New Mexico Crimes Against Household Members Act.
    Crimes included under the New Mexico Crimes Against Household Members Act are assault, aggravated assault, assault with intent to commit a violent felony, battery, and aggravated battery. A “household member” is a spouse, former spouse, parent, present or former stepparent, present or former parent-in-law, grandparent, grandparent-in-law, a co-parent of a child, or person with whom someone has had a continuing personal relationship. Cohabitation is not necessary to be deemed a household member. In addition, under the New Mexico Family Violence Protection Act, violation of a court-issued order of protection granted to protect an individual who has experienced sexual violence or misconduct or domestic abuse is a misdemeanor crime.
  • Domestic abuse: under the Family Violence Protection Act, “domestic abuse” is defined as “an incident of stalking or sexual assault whether committed by a household member or not” resulting in physical harm, severe emotional distress, bodily injury or assault, a threat causing imminent fear or bodily injury by any household member, criminal trespass, criminal damage to property, repeatedly driving by a residence or work place, telephone harassment, harassment, or harm or threatened harm to children. Under the Family Violence Protection Act, “household members” include a spouse, former spouse, parent, present or former stepparent, present or former parent in-law, grandparent, grandparent-in-law, child, stepchild, grandchild, co-parent of a child, or a person with whom the petitioner has had a continuing personal relationship. Cohabitation is not necessary to be deemed a household member under the Act. Violation of any provision of an order of protection issued under the Family Violence Protection Act is a misdemeanor crime and constitutes contempt of court and may result in a fine or imprisonment or both.
  • Dating violence: under New Mexico’s Crimes Against Household Members Act, someone with whom a person has a dating or intimate relationship is considered to be a household member. Any of the felony and misdemeanor crimes enumerated as domestic violence in the Crimes Against Household Members Act are also crimes when committed against someone with whom the offender has a dating or intimate relationship.
  • Stalking: under New Mexico law, “stalking” is defined as knowingly pursuing a pattern of conduct, without lawful authority, directed at a specific individual when the person intends that the pattern of conduct would place the individual in reasonable apprehension of death, bodily harm, sexual assault, or restraint of the individual or another individual. “Aggravated stalking” consists of stalking perpetrated by a person who knowingly violates a court order, including an order of protection, or when the person possesses a deadly weapon or when the victim is under sixteen years of age.
  • Sexual harassment: sexual harassment, a form of sex discrimination, is defined as unwelcome conduct of a sexual nature.  There are two typical types of sexual harassment: quid pro quo and hostile environment.  UAP 2730 (“Sexual Harassment”) describes the University’s prohibition on all forms of sexual harassment, including sexual violence and sexual misconduct.

For complete definitions of the crimes of sexual assault, domestic violence, dating violence, and stalking under New Mexico law, see “New Mexico Definitions of Violence Against Women Act1 Crimes” in Section 15 of this policy.

2.1. Jurisdiction

OEO is not a law enforcement agency. As such, while it is charged with investigating allegations of sexual violence and misconduct as provided in this policy, OEO does not enforce criminal statutes. Enforcement of criminal statutes is the sole jurisdiction of law enforcement agencies. Similarly, while it generally has jurisdiction to administratively investigate claims of sexual violence, depending on the allegations made, OEO may not have jurisdiction to investigate alleged sexual misconduct. The information received from an individual will be reviewed and a determination will be made as to whether OEO has jurisdiction over the concerns.


3. Definition of Consent

Consent is an affirmative, informed, and conscious decision to willingly engage in mutually acceptable sexual activity. Consent requires a clear affirmative act or statement by each participant to each sexual act in a sexual interaction. Consent demonstrates that the conduct in question is welcome or wanted. Relying solely on non-verbal communication can lead to miscommunication about one’s intent. Confusion or ambiguity may arise at any time during a sexual interaction. Therefore, it is essential that each participant makes clear his or her willingness to continue at each progression of the sexual interaction.

Figure 3: Definition of Consent

Consent:

  • Affirmative, informed, and conscious decision to willingly engage in mutually acceptable sexual activity
  • Demonstrated by clear affirmative act or statement by each participant to each sexual act in a sexual interaction

No consent:

  • No clear act or statement given
  • Silence, passivity, or lack of response
  • Participant is asleep, unconscious, or otherwise unaware of what is happening
  • Participant is under the influence of alcohol or drugs such that he or she is unable to give meaningful consent or does not understand the situation
  • Participant is impaired by mental, physical, or psychological disability
  • Participant is not of age to consent


Sexual activity will be considered “without consent” if no clear act or statement is given. Consent may not be inferred from silence, passivity or lack of active response alone. A person who is asleep, unconscious, or otherwise unaware of what is happening is unable to give consent. Furthermore, a current or past dating or sexual relationship is not sufficient to constitute consent in every instance, and consent to one form of sexual activity does not imply consent to other forms of sexual activity. It is the responsibility of the person initiating the sexual activity to obtain consent from his or her partner. Being intoxicated or under the influence of other drugs does not diminish one’s responsibility to obtain consent.

The use of alcohol or drugs can limit or prevent a person’s ability to freely and clearly give consent. If a person is under the influence of alcohol or drugs such that he or she is unable to give meaningful consent or does not understand the fact, nature or extent of the sexual situation, there is no consent. Intoxication alone, however, does not mean a person is incapable of consenting to sexual activity. OEO examines the record for other behavior like stumbling or otherwise exhibiting loss of equilibrium; slurred speech or word confusion; bloodshot, glassy or unfocused eyes; vomiting, especially repeatedly; being disoriented, or confused as to time or place; or loss of consciousness. Should the preponderance of the evidence in the record demonstrate that one or more such behaviors were objectively apparent at the time the alleged unconsented-to or unwelcomed sexual activity occurred, then the evidence may demonstrate that the respondent knew or should have known that the complainant was incapable of giving meaningful consent to sexual activity due to intoxication. If the person initiating the sexual activity is also under the influence of alcohol or drugs, that does not diminish his or her responsibility to obtain consent, and is not a defense to charges of violation of this policy. Because it may be difficult to discern whether a sexual partner is incapacitated, it is better to err on the side of caution and assume that your partner is incapacitated and unable to give consent to the sexual activity.

In addition to alcohol or drugs, if a person’s mental, physical, or psychological disability (temporary or permanent) or age impairs his or her ability to make an informed decision to willingly engage in sexual activity, there is no consent. Examples include, but are not limited to, when an individual is incapacitated, scared, physically forced, intimidated, coerced, mentally or physically impaired, passed out, threatened, isolated, or confined.


4. Amnesty from Disciplinary Action for Students

UNM’s primary concern is the safety of students, staff, and faculty. While staff and faculty must report incidents of students experiencing sexual violence or misconduct, except as noted in Section 7, the University strongly encourages all members of the campus community to report instances of sexual violence or misconduct. The University grants amnesty to students who may have violated the Student Code of Conduct’s prohibition on the use or possession of alcohol or drugs at the same time he or she experienced sexual violence or misconduct. Therefore, no drug or alcohol-related charges under the Student Code of Conduct are applied to students who report that they were using drugs or alcohol at the time they experienced sexual violence or misconduct. Depending on the circumstances, the Dean of Students Office may determine, on a case-by-case basis, that those who witnessed an instance of sexual violence or misconduct and who provide information regarding such instance may be granted the same amnesty. However, students should understand that any violation of state or federal criminal law involving the use or possession of alcohol or illegal drugs may result in prosecution, and UNM cannot grant amnesty from proceedings in the criminal justice system. Decisions about prosecution are made by the District Attorney’s Office in the state criminal justice system and by the U.S. Attorney’s Office in the federal criminal justice system.


5. Off-Campus Conduct

Conduct that occurs off-campus can be the subject of a complaint or report and will be evaluated to determine whether it implicates this policy or the Student Code of Conduct. If off-campus sexual violence has continuing effects that create a hostile environment on campus for an individual who has experienced sexual violence or misconduct, the University may take interim measures and depending on the circumstances, will investigate the conduct.


6. Retaliation

It is a violation of Title IX and University policy to retaliate against any person who makes a complaint of sexual violence or misconduct or testifies, assists, or participates in an investigation or proceeding regarding an allegation of sexual violence or misconduct. Concerns that a student, staff, or faculty member has threatened to retaliate or has retaliated against another student, staff, or faculty member should be reported promptly to the Office of Equal Opportunity. A staff, faculty member, or student who retaliates against a person who makes a complaint of sexual violence or misconduct, testifies, assists, or participates in an investigation or proceeding regarding an allegation of sexual violence or misconduct, or seeks assistance from OEO, may be subject to disciplinary action.

Figure 4: Retaliation

It is a violation of Title IX and University policy to retaliate against any person who makes a complaint or report of sexual violence or sexual misconduct or testifies, assists, or participates in an investigation or proceeding regarding an allegation of sexual violence or sexual misconduct.


7. Disclosure of Information

The University encourages individuals who have experienced sexual violence or misconduct to get the support they need and the University can respond appropriately. UNM recognizes that such individuals may want to speak with someone on campus before deciding whether to report the incident to the police or the Office of Equal Opportunity for investigation. Individuals who experience sexual violence or misconduct are strongly encouraged to understand the various reporting requirements of University entities in order to make the best decision for their circumstance. Whether or not anonymity is requested, information about sexual violence and misconduct will be treated confidentially and only be shared on a need-to-know basis, and as authorized under University policy and applicable federal and state law.

As required by the federal Clery Act for statistical purposes, instances of sexual violence and misconduct reported to entities other than those identified below as “No Disclosure Required” must be reported to the UNM Police Department, which is responsible for annually reporting crime statistics to the University community. Such reports to UNM Police Department do not include identities and are only comprised of the nature, date, time, and general location. These reports do not serve as an official police report and do not launch a criminal or administrative investigation; these reports are purely for statistical purposes to meet Clery Act obligations.

For examples of all disclosures listed below, please visit loborespect.unm.edu.

Figure 5: Disclosure Obligations

IF YOU DISCLOSE TO THE ENTITIES ON THE RIGHT

ENTITIES

Anonymity is maintained and no disclosure is required

ON CAMPUS

OFF CAMPUS

Student Health and Counseling (SHAC)

Counseling and Referral Services (CARS)

Other licensed medical providers

Rape Crisis Center of Central New Mexico

Sexual Assault Nurse Examiner (SANE)

Anonymity is maintained, but an anonymous record is made for statistical reporting only

UNM Advocacy centers, such as the LoboRESPECT Advocacy Center, Women’s Resource Center (WRC) and the LBGTQ Resource Center. A full listing can be found at http://loborespect.unm.edu.

No anonymity is possible

All UNM staff and faculty not employed by or associated with the organizations listed or referred to above.

For more information about disclosure obligations, see below.

  1. Anonymity/No Disclosure Required: SHAC, CARS, and Off-Campus Resources
    At UNM, a student who experiences sexual violence or misconduct can speak in complete confidentiality with a licensed counselor or a medical provider at UNM’s Student Health and Counseling (SHAC).  SHAC counselors and medical providers do not report any information2 about an incident to the police or any other University entities.  Similarly, UNM staff and faculty may speak confidentially with a licensed counselor at UNM Counseling and Referral Services (CARS) and no information will be disclosed to any entity.3  Other licensed medical professionals with UNM affiliation who receive information about instances of sexual violence or misconduct while serving in an established practitioner/patient relationship are not required to disclose information.  Outside of UNM, the Rape Crisis Center of Central New Mexico and the Sexual Assault Nurse Examiner (SANE) provide their services to victims of sexual violence on a completely confidential basis. These agencies provide statistical information only to UNM SMART. Additional information about Rape Crisis Center of Central New Mexico, SANE and UNM SMART can be found in this policy, under Section 9 on “Resources Following an Act of Sexual Violence or Sexual Misconduct.”
  2. Anonymity/Statistical Reporting Only: Advocacy Centers at UNM
    UNM's LoboRESPECT Advocacy Center and Women’s Resource Center (WRC) are designated as advocacy and support centers for those who have experienced sexual violence or misconduct.  UNM may designate other Advocacy Centers on campus from time to time; a complete list of designated Advocacy Centers can be found at http://loborespect.unm.edu.  Individuals who have experienced sexual violence or misconduct may talk with these individuals anonymously; however, Advocacy Centers will report the nature, date, time, and general location of the incident to the Office of Equal Opportunity as well as to the UNMPD but will not provide identifying information without written consent from that individual.  These reports to OEO and UNMPD do not launch a University investigation. Rather, the purpose of the report is to meet Clery Act Compliance, and to help keep the Title IX Coordinator informed of the general extent and nature of sexual violence and misconduct on and off campus in an effort to track patterns, evaluate the scope of the problem, and formulate appropriate campus-wide responses.
  3. No Anonymity Possible: All UNM Faculty/Staff Not Previously Identified
    Information about alleged sexual violence or misconduct that is shared by an individual with any University faculty or staff not previously identified is required to be reported to the Office of Equal Opportunity by law and UNM Policy. However, it is still the full choice of the individual who has experienced sexual violence or misconduct to make a report with UNM Police Department or to participate in an administrative investigation with OEO.4  UNM faculty/staff receiving information about cases of sexual violence or misconduct involving students must report within 24 hours or as soon as reasonably possible what they have learned to the Office of Equal Opportunity at 505-277-5251 or emailing oeounm@unm.edu. Reports made by faculty or staff to OEO will include the nature, date, time, location, as well as the identities of all involved parties. While faculty and staff must report this information to OEO, this information is still considered confidential and will only be shared by OEO with those who have a legitimate need-to-know and as authorized by University policy and applicable federal and state law.
  4. Requests for Anonymity Within an Investigation or That No Investigation Occur
    Please refer to Section 13 on “Investigation and Disciplinary Procedures” for information about requests for anonymity or that no investigation occur.

8. Rights of the Parties

During OEO’s investigation following a report of sexual violence or misconduct, and prior to a final determination being made, the reporting party (“complainant”) and responding party (“respondent”) have equal rights to be treated with respect, dignity, and sensitivity throughout the process; to information on how the college will protect their confidentiality; and to present evidence or other information they feel relevant to the matter. Once OEO’s investigation is complete and a final determination is made, the complainant and respondent have the equal right to notice of those findings and equal access to appeal those findings as described herein.

Figure 6: Rights of the Parties

Complainants Shall Be Entitled:

Respondents Shall Be Entitled:

  • To be treated with respect, dignity, and sensitivity throughout the process.
  • To information on obtaining orders of protection and no contact orders.
  • To information on how the college will protect the confidentiality of the victim.
  • To notification of available services for mental health, victim advocacy, legal assistance, and other available community resources.
  • To be informed of the University’s sexual violence policies and procedures.
  • To written notification about their right to change academic, living, transportation, or work situations even if they do not formally report or participate in the University’s investigatory or disciplinary process.
  • To written notification of a student or employee’s rights and options, regardless of whether the crime took place on campus or off campus.
  • To a timely and thorough investigation of the allegations.
  • To participate or decline to participate in the investigation or disciplinary process.  However, these processes may still occur and decisions made based on the information available.
  • To the same opportunity as the respondent to have others present at any meeting with University officials for support and/or consultation.
  • To the same opportunity as the respondent to present and have others present evidence about alleged violations in investigatory and/or disciplinary proceedings.
  • To be notified, in writing of the outcome of any investigative, disciplinary, or appeals proceeding (victim is free to share the outcome with anyone they wish).
  • To appeal the decision and sanctions determined by the Investigation and/or disciplinary proceedings.
  • To be protected from retaliation for their involvement in university investigatory proceedings.
  • To be treated with respect, dignity, and sensitivity throughout the process.
  • To information on how the college will protect the confidentiality of the respondent.
  • To notification of the how to access all available resources (i.e., counseling services, advocacy/support).
  • To be informed of the University's sexual violence policies and procedures.
  • To timely written notice of all alleged violations within the complaint.
  • To a timely and thorough investigation of the allegations.
  • To participate or decline to participate in the investigation or disciplinary process.  However, these processes may still occur and decisions made based on the information available.
  • To the same opportunity as the complainant to have others present at any meeting with University officials for support and/or consultation.
  • To the same opportunity as the complainant to present and have others present evidence about alleged violations in investigatory and/or disciplinary proceedings.
  • To be notified, in writing of the outcome of any investigative, disciplinary, or appeals proceeding (respondent is free to share the outcome with anyone).
  • To appeal the decision and sanctions determined by the Investigation and/or disciplinary proceedings.
  • To be protected against retaliation for their involvement in university investigatory proceedings.

For more information regarding the rights of the parties in a Title IX proceeding, see the Student Code of Conduct and Student Grievance Procedure in the UNM Pathfinder.

Following OEO’s investigation, the complainant and respondent have equal rights to seek a discretionary review of OEO’s determination through the Office of the President pursuant to Section 10 of UAP 3220 (“Ombuds Services and Dispute Resolution for Staff”), and/or the Board of Regents pursuant to RPM 1.5 ("Appeals to the Board of Regents") Should the Dean of Students Office take action based on the investigation’s findings, both parties will have equal rights to appeal the action pursuant to the Student Grievance Procedure in the UNM Pathfinder. In a grievance of the Dean of Students Office’s decision, both parties will have equal access to the information upon which the findings are based, have an equal opportunity to present evidence and witnesses (subject to the limitations in the statement of complainant’s rights below), and will receive equal notification of the results of the procedure. Both parties also will have the equal right to appeal the results of the grievance of the Dean of Students Office’s decision as provided in the Student Grievance Procedure in the UNM Pathfinder.


9. Resources Following an Act of Sexual Violence or Sexual Misconduct

While UNM encourages an individual who has experienced sexual violence or misconduct to make an official report, whether the person chooses to do so, she or he is urged to seek appropriate help. There are numerous resources for students, staff, and faculty at UNM. Specific resources, either on or off campus for medical treatment, legal evidence collection, obtaining information, support, and counseling, and officially reporting an incident of sexual violence or misconduct are listed below. Each resource can assist a person to access the full range of services available. Students and staff or faculty accused of committing an act of sexual violence or misconduct may obtain confidential and anonymous support and counseling at Student Health and Counseling (SHAC) (for students) and Counseling and Referral Services (CARS) (for staff and faculty).

LoboRESPECT Advocacy Center (505) 277-2911

Provides a safe and welcoming environment for students to receive support and advocacy services for a number of areas.

Sexual Misconduct and Assault Response Team (SMART)

UNM’s Albuquerque Campus has a Sexual Misconduct and Assault Response Team (SMART). SMART is a victim centered, victim controlled, coordinated response team composed of community and University organizations designed to quickly respond to cases of sexual assault or abuse. Additional information can be found at SMART.unm.edu.

Medical and Legal Evidence Collection

Sexual Assault Nurse Examiner (SANE)
(505) 884-SANE (7263) 24-hour hotline
24-hour free medical and forensic exams by trained nurses, emergency contraception, treatment for sexually transmitted infection, evidence collection, forensic photography, and follow-up services.

Medical and Counseling

Student Health and Counseling (SHAC)
(505) 277-3136 24-hour number
Counseling, crisis intervention, and comprehensive medical services for eligible UNM students. SHAC can help expedite referrals to SANE for evidence collection.

Counseling

Rape Crisis Center of Central New Mexico
(505) 266-7711
Operates a 24-hour hotline and provides victim advocates and free counseling.

UNM Counseling and Referral Services (CARS)
(505) 272-6868
Free counseling services for eligible UNM staff, faculty, and their spouses/domestic partners and retirees.

Law Enforcement

UNM Police Department
(505) 277-2241

For emergency on campus, dial 911
Specially trained SMART officers will respond to and investigate sex crimes on the UNM campus, and will forward cases to the District Attorney’s Office as appropriate. If the sex crime occurred off-campus, UNM Police Department can assist an individual who has experienced sexual violence or misconduct in contacting the appropriate law enforcement agency to file a report.

Academic Assistance

Dean of Students Office
(505) 277-3361
Dean of Students Office offers students impacted by sexual violence or misconduct assistance in navigating class issues, processing withdrawals, tuition refund appeals, scholarship and financial aid issues, and related needs aimed at supporting students.

Additional Campus Resources

Office of Residence Life and Student Housing
(505) 277-2606
Addresses misconduct by residence halls students in the residence halls. Works with students who need to make changes in on-campus housing due to an incident of sexual violence or misconduct.

American Campus Community
Lobo Village (505) 925-5575
Casas del Rio (505) 277-2094
Owns and manages Lobo Village and Casas del Rio, in consultation with Office of Residence Life and Student Housing.

Office of Equal Opportunity
(505) 277-5251
UNM’s Title IX Coordinator is the Director of the Office of Equal Opportunity. OEO investigates allegations of violations of UNM’s policy prohibiting sexual harassment.

Women’s Resource Center
(505) 277-3716
Offers programs on gender and sexuality issues. Staff also provides support to individuals who have experienced sexual violence or misconduct and provides mental health referrals for UNM students.

LGBTQ Resource Center
(505) 277-5428
Provides service to UNM students, staff, and faculty of all gender identities and sexual orientations through support, advocacy and safety.

Manzanita Counseling Center
(505) 277-7311
Manzanita is a counselor training facility affiliated with the Counselor Education Program in the UNM College of Education. Counseling for students, staff, and faculty is provided free of charge by advanced graduate students under the supervision of UNM faculty who are licensed professional counselors. Services are available during the academic year (fall and spring semesters) only.

Agora Crisis Center
(505) 277-3013
Volunteer trained peer counselors respond to phone calls on a 24/7 hotline and can refer callers to UNM and community resources.


10. Interim Measures

The Dean of Students Office has the authority to implement interim measures which stay in place until the end of any review or appeal process. The Dean of Students Office can impose a “no contact” order, which typically directs the complainant and respondent not to have contact with each other, either in-person or through electronic communication, pending the investigation and resolution of a complaint. The Dean of Students Office can arrange for changes in academic and/or on-campus living situations as needed. Other interim measures, as appropriate, can be implemented by the Dean of Students Office before the final outcome of the investigation and afterwards as needed.

Figure 7: Interim Measures

  • The Dean of Students Office can impose a “no contact” order, which typically directs the complainant and respondent not to have contact with each other, either in-person or through electronic communication, pending the investigation and resolution of a complaint.
  • The Dean of Students Office can arrange for changes in academic and/or on-campus living situations as needed.

11. Procedures to Follow if Sexual Violence or Misconduct Happens to You

If you are in danger, dial 911 for assistance. If you are on the UNM campus, you will be connected with UNM Police Department. If you are off campus in Albuquerque, you will be connected with the Albuquerque Police Department. You may also want to call a trusted family member or a friend. Seek medical attention. If you have serious injuries, seek emergency medical attention at a hospital. In the Albuquerque area, you can contact SANE (Sexual Assault Nurse Examiners) at (505) 884-7263 for information about receiving a sexual assault examination.

You can also contact the Rape Crisis Center of Central New Mexico at (505) 266-7711 or (888) 881-8282. The Rape Crisis hotline is available 24 hours a day, 7 days a week, 365 days a year. An advocate from Rape Crisis Center will accompany you to a sexual assault examination at the office of the Sexual Assault Nurse Examiners.

It is important for individuals who have experienced sexual violence or misconduct, in particular sexual assault, to understand the steps to take to preserve evidence for possible use later to support a criminal case. All those who have experienced a crime have the right to report a crime to police at any time, regardless of when it occurred. However, the sooner you file a report of a sexual assault, the better the chances that helpful evidence can be collected to support a criminal case, that you will be able to convey a clear account of what happened, and that police will be able to identify and speak with witnesses.

Figure 8: Procedures to Follow if Sexual Violence or Misconduct Happens to You

  • It is important for individuals who have experienced sexual violence or misconduct, in particular sexual assault, to understand the steps to take to preserve evidence for possible use later to support a criminal case.
  • The sooner you file a report of a sexual assault, the better the chances that helpful evidence can be collected to support a criminal case, that you will be able to convey a clear account of what happened, and that police will be able to identify and speak with witnesses.
  • You may file a report of sexual assault and/or receive a sexual assault medical examination immediately and then decide at a later date if you want to pursue filing criminal charges.

The UNM Police Department encourages you to report any act of sexual violence or misconduct that takes place on the UNM campus to UNMPD. Also, as discussed above, if you are a student and you need assistance in reporting to UNMPD, you can get help from the Dean of Students Office or any of the other offices participating in UNM’s Sexual Misconduct and Assault Response Team (SMART).


12. Educational Programs

UNM recognizes the harm caused by sexual violence and misconduct and the need to educate the University community regarding these issues. The University offers the following educational programs:

  1. Women’s Resource Center
    (505) 277-3716
    The Women’s Resource Center offers programs on gender and sexuality issues, including a gendered violence prevention program, women’s peer mentoring program, self-defense and awareness training, and bystander intervention education.  Staff also provides support to individuals who have experienced sexual violence or misconduct and provides mental health referrals for UNM students.
  2. Dean of Students Office
    (505) 277-3361
    The Dean of Students Office coordinates new student orientation which includes programs addressing sexuality, relationships, and sexual violence and misconduct issues, including the definition of consent under this Sexual Violence Policy.    
  3. Residence Life and Student Housing
    (505) 277-2606
    RLSH coordinates programming for residence halls students, including programs addressing sexuality, relationship, and safety issues.  RLSH also administers a Residence Life discipline system which addresses misconduct by residence hall students occurring in the residence halls.  Resident Advisors (RAs) are trained in responding to students residing in the residence halls that have experienced sexual violence or misconduct and can assist the student with contacting UNM Police Department and/or the Dean of Students Office to file a report.
  4. UNM Police Department
    (505) 277-2241
    As requested by campus departments, offices, and student, staff, and faculty groups, the UNM Police Department conducts presentations that center on personal safety, including specific training on sexual violence and misconduct prevention.
  5. UNM Office of Equal Opportunity
    (505) 277-5251
    OEO staff offer in-person training for departments on preventing and responding to sexual harassment, including sexual violence and misconduct.  OEO also provides online training to all the University community on preventing sexual harassment and University policy.
  6. Student Health and Counseling (SHAC)
    Health Education & Prevention Department
    (505) 277-3716
    SHAC’s Health Education Department offers workshops and educational programs on sexuality, sexual decision-making and relationships.   A Sexual Assault and Abuse Resource Guide is compiled and updated yearly to include current information about campus and community resources that assist individuals who have experienced sexual violence or misconduct.
  7. Office of Student Activities
    (505) 277-4706
    The Office of Student Activities coordinates various programs for UNM’s chartered student organizations, including fraternities and sororities, which address sexuality, relationships, and sexual assault issues.

13. Investigation and Disciplinary Procedures

The University of New Mexico's Student Code of Conduct and Visitor Code of Conduct, which apply to the Albuquerque campus and all branch campuses, prohibit any form of sexual violence or misconduct. The Student Code of Conduct and Visitor Code of Conduct describe the sanctioning options and procedures that may apply after an investigation pursuant to this section is complete should a finding be made that a student or visitor more likely than not violated this policy. The Student Code of Conduct and Visitor Code of Conduct can be found in the UNM Pathfinder, and are administered by the Dean of Students Office.

Similarly, RPM 2.5 (“Sexual Harassment”) and UAP 2730 (“Sexual Harassment”) prohibit all forms of sexual harassment. If, after an investigation pursuant to this section, a finding is made that a staff member violated this policy, disciplinary action may be issued pursuant to UAP 3215 (“Performance Management”). All three policies are administered by the UNM Policy Office.

All forms of sexual harassment are considered violations of the Faculty Handbook Policy C09 (“Respectful Campus”). Under Policy C09, allegations of sexual harassment are processed pursuant to UAP 2730. If, after an investigation pursuant to this section, a finding is made that a faculty member committed any form of sexual harassment, including sexual violence or sexual misconduct, disciplinary action may be issued pursuant to Faculty Handbook Policy C07 (“Faculty Disciplinary Policy”). The Faculty Handbook is administered by the Office of University Secretary.

A student who experiences an act of sexual violence or misconduct committed by a another UNM student, staff or faculty member, or a visitor to the University, has the option of filing a complaint with UNM’s Office of Equal Opportunity. OEO is the University office that processes allegations of sexual harassment, sexual violence, and sexual misconduct pursuant to its Discrimination Claims Procedure. While OEO’s Discrimination Claims Procedure includes mediation as an option for resolving discrimination complaints, mediation will not be employed to address a complaint of sexual violence. OEO investigators are trained in investigating allegations of sexual violence and misconduct.

Outside of UNM, the Rape Crisis Center of Central New Mexico and the Sexual Assault Nurse Examiner (SANE) provide their services to individuals who have experienced sexual violence or misconduct on a confidential and anonymous basis. The victim’s identity will not be disclosed to police or to UNM without the victim’s consent. Additional information about the Rape Crisis Center of Central New Mexico and SANE can be found in this policy under Section 9 on “Resources Following an Act of Sexual Violence."

If an individual reporting to a non-confidential UNM entity (see Section 7) that he or she experienced sexual violence or misconduct (“complainant”) requests that his or her name not be revealed to the alleged perpetrator (“respondent”), or asks the Title IX Coordinator not to investigate the allegations of sexual violence, the complainant will be informed that honoring the request may limit UNM’s ability to fully process the allegations, including pursuing disciplinary action against the respondent. The University’s prohibition against retaliation will also be explained to the complainant. If the complainant still insists that his or her name not be disclosed to the respondent, or continues to ask the University not to investigate the allegations, the Title IX Coordinator will determine whether the University can honor the request while still providing a safe and nondiscriminatory working and learning environment for the complainant and others. The Title IX Coordinator will strive to abide by the complainant’s request. However, the Title IX Coordinator reserves the right to determine that it is essential to disclose the complainant’s identity and/or to investigate the allegations despite the complainant’s request not to in order for UNM to fulfill its obligations under Title IX. In such cases, the Title IX Coordinator will inform the complainant prior to starting an investigation and will share information only with University officials who are responsible for processing the allegations in the complaint and therefore need to know that information.

In all cases, regardless of a complainant’s request for anonymity, the federal Clery Act requires that disclosure of crimes of sexual violence or misconduct that occur on the UNM campus and on other property the University has control over (as defined under the Clery Act) must be reported for statistical purposes to the UNM Police Department, which is responsible for annually reporting crime statistics to the University community. However, such reports to UNM Police Department are for statistical purposes only and are not required to include the victim’s identity without his or her consent.

If the victim files a complaint with OEO and instructs it to investigate the allegations made, OEO will first make an assessment of whether it has jurisdiction to investigate the allegations made. If OEO does not have jurisdiction to investigate or otherwise process the allegations made, it will refer those issues to the appropriate body, if any. If it does have jurisdiction to investigate, as part of that investigation, OEO will make reasonable attempts to contact the respondent to notify him or her of the allegations made, his or her right to respond to the allegations made and present information he or she deems relevant to the matter, and OEO’s investigation procedure. If OEO is unable to contact the respondent or if the respondent elects not to provide a response to the allegations made or information pertinent to the matter, OEO will make its determination based on the information it is able to gather.

Once a complaint is filed, both the complainant and respondent have equal rights to present evidence to OEO during its investigation. Once its investigation is complete, OEO uses a preponderance of the evidence standard to evaluate the evidence and determine whether an act of sexual violence or misconduct occurred. The “preponderance of the evidence standard” means that, on evaluation of all of the evidence, it is more likely than not that the alleged act of sexual violence or misconduct occurred.

The evidence OEO gathers during its investigation will be maintained by OEO and kept confidential to the extent authorized by law and policy. Should a complainant or respondent appeal OEO’s determination or any sanctions issued by the Dean of Students (as provided below), OEO may be required to release the evidence upon which its determination is based to the appealing party or the entity to which the appeal is made or both.

If, after investigation, OEO finds that it is more likely than not that a student or visitor committed an act of sexual violence or misconduct (a Determination of Probable Cause), OEO will refer the matter to the Dean of Students Office to decide on the sanction to be imposed on the offender. If OEO makes a Determination of Probable Cause that a staff or faculty member committed an act of sexual violence or misconduct in violation of UNM policy, OEO will refer the matter to that individual’s chain of command to take appropriate action, including taking disciplinary action. Misconduct by staff and the imposition of disciplinary action is handled pursuant to UAP Policy 3215 (“Performance Management”), and faculty matters are addressed pursuant to the Faculty Handbook, specifically Policy B5 (“Separation from the University”) and Policy C07 (“Faculty Disciplinary Policy”). Appeals to the University President and the Board of Regents are addressed in Section VI of the Discrimination Claims Procedure. OEO does not make any determinations regarding whether a respondent has committed an act of sexual violence or misconduct in violation of criminal statute. Rather, such determinations are the sole jurisdiction of state and federal police and prosecutorial agencies.

In any disciplinary proceeding held by the Dean of Students Office, both the accuser and the accused are allowed to bring an advisor, including an attorney advisor. However, such advisors are not authorized to speak on behalf of the individual they are advising. Rather, the accuser and accused must present their own case during the proceeding, and advisors’ participation is limited to advising the person they are advising. In addition, both the accuser and accused will be notified in writing of the decision on sanctions to the extent permitted by the federal Family Educational Rights and Privacy Act (FERPA), and both parties have the right to appeal the sanctions decision. More information about the disciplinary process used by the Dean of Students Office can be found in the Student Grievance Procedure. Article 4.4 discusses allegations of sexual violence, sexual misconduct, and sexual harassment.

Individuals who have experienced sexual violence or misconduct are encouraged to report the crime to the appropriate law enforcement authority. The Dean of Students Office is available to meet with a student to discuss and help implement interim measures, including academic adjustments, changes in on-campus living situations, issuance of “no contact” orders and other measures as needed. Interim measures may also be provided for staff or faculty who experience sexual violence or misconduct, as directed by the appropriate supervisory authority.

Under the University's Student Code of Conduct, which applies to the Main Campus and all of the branch campuses, a student who commits a violation of this Code, including an act of sexual violence or misconduct, is subject to the following possible sanctions:

  • Verbal warning - means an oral reprimand.
  • Written warning - means a written reprimand.
  • Disciplinary probation - means the establishment of a time period during which further acts of misconduct may or will result in more severe disciplinary sanctions depending upon the conditions of the probation. Conditions of probation can include community service, attendance at workshops and/or seminars regarding subjects including but not limited to alcohol, drug or safety workshops and/or seminars, mandatory mental health evaluation and/or counseling or other educational sanctions.
  • Suspension - means losing student status for a period of time specified in the terms of the suspension. A suspension may commence immediately upon a finding of a violation or it may be deferred to a later time.
  • Expulsion - means losing student status for an indefinite period of time. Readmission may not be sought before the expiration of two years from the date of expulsion, and it is not guaranteed even after that time.
  • Dismissal - means termination of student employment, either for a stated time period or indefinitely.
  • Barred from campus - means being barred from all or designated portions of the University property or activities.

Students living in UNM residence halls are subject to the following possible sanctions for misconduct occurring in the residence halls:

  • Housing reassignment - means the transfer of the student from one dorm room to another or one residence hall to another.
  • Restricted from entry into specific residence halls, dining hall, commons building, and other UNM housing facilities.
  • Contract termination - means the termination of the housing contract either for a stated period of time or indefinitely.

Under the University's Visitor Code of Conduct, which applies to the Albuquerque and all branch campuses, a visitor who commits a violation of this Code, including a sex offense, is subject to the following possible sanctions:

  • Verbal Warning - means an oral reprimand.
  • Written Warning - means a written reprimand.
  • Probation - means the establishment of a time period during which further acts of misconduct may or will result in more severe sanctions depending on the conditions of the probation.
  • Removal from campus - means being physically escorted or forcibly removed to a location off property owned or controlled by the University, by University Police Officers or other University agents.
  • Barred from campus - means being barred from all or designated portions of University property or activities.
  • The sanctions of denial of admission, readmission or employment by the University.
  • Additionally or alternatively, any sanction applicable to a student under the Student Code of Conduct may be provisionally applied to a visitor, to be made effective should the visitor ever enroll or re-enroll at the University.

Faculty who are found to be in violation of this policy may be subject to disciplinary action as provided in the Faculty Handbook Policy C07 (“Faculty Disciplinary Policy”).  Staff who are found to be in violation of this policy may be subject to disciplinary action as provided in UAP 3215 (“Performance Management”).

Figure 9: Investigation And Disciplinary Action

Investigation

  • OEO reviews report to determine jurisdiction.
  • OEO meets with reporting party (referred to as “complainant”) and responding party (referred to as “respondent”) to determine scope of investigation and explain procedure.
  • OEO gathers evidence from parties, analyzes to determine if it demonstrates that a violation of University policy more likely than not occurred (referred to as the “preponderance of the evidence” standard).
  • OEO issues a Preliminary Letter of Determination (PLOD) finding that there is either probable cause or no probable cause that a violation of University policy occurred.
  • Complainant and respondent have two weeks to submit any new information that OEO has not considered or previously seen.
  • OEO issues a Final Letter of Determination (FLOD) either upholding the finding in the PLOD or altering it based on new information submitted.

Either party has two weeks to seek a discretionary review of the FLOD from the Office of the President.

Disciplinary Action

  • OEO forwards the matter to the Student Conduct Officer and/or Student Conduct Committee at the Dean of Students Office to determine what, if any, sanction to be imposed.
  • At either party's election or when referred by the Student Conduct Officer, Student Conduct Committee will hold a formal hearing regarding discipline imposed or lack thereof.
  • Student Conduct Committee issues a formal decision on discipline imposed.

Either party has seven working days to appeal certain types of disciplinary action, as provided in the UNM Pathfinder, to the Dean of Students or Vice President of Student Affairs.


14. UNM Branch Campus Information

UNM’s branch campuses in Gallup, Los Alamos, Taos and Valencia follow the University’s Student Code of Conduct and Visitor Code of Conduct. All branch campuses prohibit any act of sexual violence or misconduct and encourage students who experience such acts to report them to the appropriate law enforcement agency and to seek assistance from campus and community resources. UNM branch campus students can submit complaints alleging sexual violence or misconduct committed by another student, staff or faculty member or third party to UNM’s Title IX Coordinator. Please refer to Section 7 of this policy for information on Confidential Reporting Sources and persons obligated to report allegations of sexual violence or misconduct.

14.1. Gallup Campus

A student who experiences sexual violence or misconduct on the Gallup campus or at a UNM-Gallup sponsored or sanctioned activity should contact the UNM-Gallup Campus Police Department at (505) 863-7620. For offenses that happen off campus, contact the Gallup Police Department at (505) 726-1745. The UNM-Gallup Police Department can assist in reporting assaults to other law enforcement agencies.

Medical services are available at:

  • Gallup Indian Medical Center | 516 Nizhoni Blvd., Gallup, NM / (505) 722-1000
  • Rehoboth McKinley Christian Hospital (RMCH) | 1901 Red Rock Dr., Gallup, NM / (505) 863-7000

Medical and counseling information available at: 

  • Rape Crisis Hotline / 1-800-649-0181

The Director of Student Affairs and the Dean of Instruction are available to assist victim of sexual violence or misconduct by making reasonable changes in academic situations as well as providing information about the on-campus judicial process.

14.2. Los Alamos Campus

A student who experiences sexual violence or misconduct on the Los Alamos campus or off-campus in Los Alamos should contact the Los Alamos Police Department. LAPD’s non-emergency phone number is (505) 662-8226 (in an emergency, dial 911). A student seeking assistance with changes to their academic situation due to experiencing sexual violence or misconduct should contact the UNM Los Alamos Student Success Manager at (505) 662-0341.

Community Resources:

  • Santa Fe Rape Crisis Center (24 hour hotline): 1-800-721-7273
  • Esperanza Battered Persons Shelter: 473-5200
  • Community Counseling Resources
  • Los Alamos Family Council: Crisis hotline (24/7) 662-4422; office (505) 662-3264 or 1-877-602-4060
  • Crisis Center of Northern New Mexico: 1-800-206-1656
  • Regional Crisis Line: (505) 820-6333
  • For a complete Student Guide to Area Resources for social services, go to http://losalamos.unm.edu/students/crises-resources.html.

14.3. Valencia Campus

A student who experiences sexual violence or misconduct on the UNM-Valencia campus or at a University sponsored or sanctioned activity should contact the UNM-Valencia Campus Police Department at (505) 925-8570 or the Valencia County Sherriff’s Department at (505) 866-2640.  If it is an emergency, call 911.  UNM-Valencia strongly encourages individuals who have experienced sexual violence or misconduct to report the incident to law enforcement.  Students may contact the Student Services Office at (505) 925-8560 for assistance in contacting law enforcement authorities in order to report an assault.

A student seeking assistance with changes to their academic situation due to experiencing sexual violence or misconduct should contact the Student Services Office at (505) 925-8560.

Community and Campus Resources:

  • Rape Crisis Center of Central New Mexico / (505) 266-7711 24-hour hotline

Provide advocate to accompany victim to Sexual Abuse Nurse Examiners medical and forensic examination, free counseling and 24 hour a day crisis telephone service with counselors available to provide immediate assistance to individuals who have experienced sexual violence or misconduct.

Director, Student Affairs
UNM-Valencia Student Services Building
(505) 925-8560

14.4. Taos Campus

A student who experiences sexual violence or misconduct on the UNM-Taos campus or off-campus in Taos should contact the Taos Police Department at (575) 758-4656. If it is an emergency, dial 911. UNM-Taos strongly encourages individuals who have experienced sexual violence or misconduct to report the incident to law enforcement. Students may contact the Student Affairs Department at (575) 737-6212 for assistance in contacting law enforcement authorities in order to report an assault.

A student seeking assistance with changes to their academic situation due to experiencing sexual violence or misconduct should contact the Student Affairs Department at (575) 737-6212. The Student Affairs Department is also responsible for administering the Student and Visitor Codes of Conduct and can provide information on pursuing on-campus judicial processes.

Community and Campus Resources

  • Community Against Violence (CAV) | 945 Salazar, Taos, NM 87571 / (575) 758-9888 (hotline)

CAV maintains a 24-hour crisis hotline and has counselors available to provide immediate assistance to individuals who have experienced sexual violence or misconduct. They also provide referrals, medical and legal advocacy and can assist with medical expenses.

  • Tri-County Community Services | 413 Sipapu Street, Taos, NM 87571 / (575) 758-5857
  • Suicide prevention hotline: (575) 758-1125
  • Public Health Department | 1400 Weimer Rd., Taos, NM 87571 / (575) 758-0493
  • Holy Cross Hospital | 1397 Weimer Rd., Taos, NM 87571 / (575) 758-8883
  • Taos Police Department | Town Hall, 400 Camino de la Placita, Taos, NM 87571 / (575) 758-4656 or 911 in an emergency

15. New Mexico Definitions of Violence Against Women Act Crimes

Stalking – NMSA 1978, § 30-3A-1 et seq., “Harassment and Stalking Act”

“Harassment” means knowingly pursuing a pattern of conduct that is intended to annoy, seriously alarm or terrorize another person and that serves no lawful purpose. The conduct must be such that it would cause a reasonable person to suffer substantial emotional distress.

“Stalking” means knowingly pursuing a pattern of conduct, without lawful authority, directed at a specific individual when the person intends that the pattern of conduct would place the individual in reasonable apprehension of death, bodily harm, sexual assault, confinement, or restraint of the individual or another individual.  A “pattern of conduct” means two or more acts, on more than one occasion.

“Aggravated stalking” consists of stalking perpetrated by a person:

  • who knowingly violates a permanent or temporary order of protection issued by a court, except that mutual violations of such orders may constitute a defense to aggravated stalking;
  • in violation of a court order setting conditions of release and bond;
  • when the person is in possession of a deadly weapon; or
  • when the victim is less than sixteen years of age.

Domestic Violence – NMSA 1978, § 30-3-10, et seq., “Crimes Against Household Members Act” (includes dating violence)

“Domestic violence” consists of assault or battery of:

  • a spouse or former spouse, or
  • parent, step-parent, in-law, grandparent, grandparent-in-law, co-parent of a child, or a person with whom a person has had a continuing personal relationship.
  • “continuing personal relationship” means a dating or intimate relationship.
  • Cohabitation is not necessary to be deemed a household member for purposes of the Crimes Against Household Members Act.

“Assault against a household member” means:

  • An attempt to commit a battery against a household member; or
  • Any unlawful act, threat or menacing conduct that causes a household member to reasonably believe they are in danger of receiving an immediate battery.

“Aggravated assault against a household member” means:

  • Unlawfully assaulting or striking a household member with a deadly weapon; or
  • Willfully and intentionally assaulting a household member with intent to commit any felony.

“Assault against a household member with intent to commit a violent felony” means any person assaulting a household member with intent to kill or commit any murder, mayhem, criminal sexual penetration in the first, second, or third degree, robbery, kidnapping, false imprisonment, or burglary.

“Battery against a household member” consists of the unlawful, intentional touching or application of force against a household member when done in a rude, insolent, or angry manner.

“Aggravated battery against a household member” consists of the unlawful touching or application of force against a household member with intent to injure that person or another.

Sexual Assault – Criminal Sexual Penetration (NMSA 1978, § 30-9-11), Criminal Sexual Contact (NMSA 1978, § 30-9-12), and Criminal Sexual Contact with a Minor (NMSA 1978, § 30-9-13)

“Criminal sexual penetration” is 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, or the genital or anal openings of another, whether or not there is any emission.

  • Criminal sexual penetration is a felony crime; the degree of the felony (first degree through fourth degree) depends on the age of the victim and the force or coercion used by the perpetrator.
  • “Force or coercion” is defined in NMSA 1978, § 30-9-10(A) and means:
  • the use of physical force or physical violence;
  • the use of threats to use physical force or violence against the victim or another;
  • the use of threats, including threats of physical punishment, kidnapping, extortion, or retaliation directed against the victim or another; or
  • committing a 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.

“Criminal sexual contact” is the unlawful and intentional touching of or application of force, without consent, to the unclothed intimate parts of another who has reached his eighteenth birthday, or intentionally causing another who has reached his eighteenth birthday to touch one’s intimate parts.  “Intimate parts” means the primary genital area, groin, buttocks, anus, or breast.

  • Criminal sexual contact is a felony crime if perpetrated by the use of force or coercion that results in personal injury to the victim, or if the perpetrator is aided or abetted by others, or when the perpetrator is armed with a deadly weapon. 
  • Criminal sexual contact is a misdemeanor crime when perpetrated with the use of force or coercion.

“Criminal sexual contact with a minor” is the unlawful and intentional touching of or application of force to the intimate parts of a minor or the unlawful and intentional causing of a minor to touch one’s intimate parts.  “Intimate parts” means the primary genital area, groin, buttocks, anus, or breast.  A “minor” is a person eighteen years of age or younger.


16. Consent

In New Mexico, the absence of consent is not an element of the crime of criminal sexual penetration.  What this means that a prosecutor does not have to prove beyond a reasonable doubt that sexual intercourse took place without the victim’s consent in order to convict the defendant of criminal sexual penetration.  A defendant can, however, claim as a defense to a charge of criminal sexual penetration that the accuser consented to the sexual act. Consent may be used to negate the element that “force or coercion” was used by the accused.  Consent is what is known as an affirmative defense to a charge of criminal sexual penetration because if the accuser consented, the sexual act would not have been unlawful.

The University of New Mexico has adopted a definition of consent in this policy (see Section 3).


Footnotes:


1The Violence Against Women Act (VAWA) is a federal law originally passed in 1994 and reauthorized several times by Congress, most recently in 2013.

2Except as required by law and their professional licensure requirements such as reporting imminent danger.

3Except as required by law and their professional licensure requirements such as reporting imminent danger.

4Under certain circumstances, the allegations made may indicate that a continuing threat to the general public may be present. Under those circumstances, UNM may be obligated to forward the allegations to the appropriate agency for investigation and/or prosecution.