SANTA FE (KRQE) - People convicted of child solicitation by electronic device should have been forced to register as sex offenders on the state's public database, according to state statute, but many prosecutors have not enforced the law.
According to SB 735, signed into law by then-Gov. Bill Richardson in 2007, sex offenders convicted of child solicitation by electronic device was added to the list of twelve crimes that require registration. That same year, former Gov. Richardson also signed SB 528, which created a new crime of criminal sexual penetration of a child under 13 years of age, which also required registration.
Under an old New Mexico statute, when two bills amend the same statute, the second bill signed is chaptered into statute, while the first bill signed becomes an annotated footnote in the "history" section of law, which is not easily accessible to judges and prosecutors, according to the Legislative Council Service.
"SB 735 was signed by the governor, it was signed into law, but the problem is it was not reflected in the statute," said Assistant Attorney General Clara Moran.
Because of this technicality, certain sex offenders convicted of soliciting children through the Internet or other electronic communication may have fallen through the cracks. For example, David Romero, the former athletic trainer at Santa Fe Public Schools, was not required to register as a sex offender.
"There was a loophole in the law that (Romero) did not have to register in these types of crimes. That's what I was told by the prosecution," said Lt. Louis Carlos with the Santa Fe Police Department, the agency responsible for arresting Romero in the Internet sting.
An attorney in the Santa Fe County district attorney's office told News 13 on Wednesday that she didn't believe registration was required for this particular crime, which is contradictory to state law. She later said she was working on getting the law clarified.
"It's very difficult for prosecutors to find the statute," said Valencia County District Attorney Lemuel Martinez. "We usually just use the Criminal Traffic Manual, and it's not in there."
The governor's office sent a letter on Thursday to district attorneys, judges and public defenders around the state to remind them that an electronic child solicitation charge requires sex offender registration.
"We have to make sure people know they have a sex offender living next door," said Gov. Susana Martinez. "I can look it up on the website, and then I, as a parent, know what to do next."
Gov. Martinez also said she will push legislation in January to get another bill passed that will actually to into the law books. Martinez has also ordered district attorneys to file motions against anyone convicted of child solicitation by electronic device since 2007 to make them register. Incidentally, the Governor's spokesman says Martinez never had one of those cases while she was the Las Cruces DA, so her office never had to deal with the registration question.
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