NMSC: It Is Still Criminal Sexual Penetration Even If the Victim Is Dead

This is a headline I never expected to write when I decided to blog about New Mexico Supreme Court cases. Last week, in State v. Martinez, the Court concluded that sexual penetration of a dead person violates Section 30-9-11 (criminal sexual penetration).

The relevant facts are simple: Defendant killed Victim by stabbing her repeatedly in the neck. About an hour later, he moved the body to his bedroom, where he had sex with it. Twice. A jury found Defendant to be sane and convicted him of first degree murder and of criminal sexual penetraton.

Criminal sexual penetration includes “the unlawful and intentional causing of a person to engage in sexual intercourse.” On appeal, Defendant argued that the statute did not apply because a “person” had to be alive. Since a corpse was not legally a person, he claimed, having sex with a corpse was not a crime. The statute did not make clear whether the term “person” included deceased persons.

I am happy to report that this was a matter of first impression in New Mexico. As the Court noted, “Although the Court has never directly addressed this issue, other jurisdictions have predominately concluded that a victim need not be alive to uphold a CSP conviction.” And now New Mexico has joined them in adhering to that sensible rule.

The Court focused on legislative intent–in particular, the intent to protect against forcible, nonconsensual sexual penetration of a person’s body. That lead to the following reasoning:

It is critical to articulate that the CSP statute, § 30-9-11, extends protections to victims who are unable to express consent. We therefore determine that it would be contrary to the spirit of the statute to exclude victims who were unable to consent or resist solely because the perpetrator “rendered the victim permanently unconscious” by killing the victim.

Of course, the Court’s reasoning was more thorough than this. But in the spirit of hoping that nobody ever needs to cite this case, I’ve decided to keep the summary short. In New Mexico, one cannot avoid a CSP conviction by killing the victim first.

As is often the case in criminal direct appeals, the remainder of the issues were controlled by well-settled law. The Court quickly disposed of them, and I will not repeat them here.

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