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Univ. of San Diego School of Law

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Sunday, September 11, 2005

Judge Benefits From Rape Technicality

A New Mexico judge was charged with rape, aggravated because it occurred during another felony.  he is accused of meeting a woman in a bar, and promising to have battery charges dismissed against her husband in exchange for sex.  The aggravating felony was a bribery charge.  However, that particular statute is inapplicable to judges, as it turns out.

NMSA 10-16-3(D) provides:   "No legislator, public officer or employee may request or receive . . . any money, thing of value or promise thereof that is conditioned upon . . . performance of an official act."

NMSA 10-16-2(g) defines "public officer or employee" as "any person who has been elected to, appointed to or hired for any state office and who receives compensation in the form of salary or is eligible for per diem or mileage, but excludes legislators and judges."  So the definition excludes legislators and judges, the text of the operational provsion puts legislators back in, and judges are not covered by the statute, presumably because of the importance of bribery to the successful administration of justice.

Another New Mexico judge was convicted of a series of felonies for exchanging leniency for sex. The NM Court of Appeals affirmed, but review has been granted. State v. Maestas, 137 N.M. 477, 112 P.3d 1134, 2005-NMCA-062 (N.M. App. Mar 28, 2005) [Jack Chin]

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