Albuquerque, NM asked in Business Law for New Mexico

Q: Does a volunteer community orchestra in New Mexico need to exclude NM Registered Sex Offenders from participating?

We are a New Horizons Orchestra in New Mexico and are a member of the New Horizons International Music Association. We are a nonprofit 501(c)(3) group of musicians that play music in a community orchestra. We are primarily adults and retired people but we occasionally have minors playing with us. We also have minors in the audience when we give concerts. We do not currently require criminal background checks to play in the orchestra. Recently we learned that one of our members who was doing some conducting for us had been convicted of one count of fourth degree criminal sexual contact and pleaded no contest. As a result he is listed on the New Mexico Sex offenders list. We have asked him to go on temporary leave while we get clarification of the laws so he is currently not playing with us. It turns out another member of our orchestra had a conviction, served time and his record has been expunged. He is not listed on the sex offenders list.

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1 Lawyer Answer
James L. Arrasmith
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A: Based on the situation you described, here are a few key considerations:

- As a community orchestra with minors participating both as musicians and audience members, you have an obligation to provide a safe environment. Excluding registered sex offenders from participation may be prudent and justified.

- However, look closely at New Mexico state laws regarding registered sex offenders and any legal prohibitions on their activities, especially any relating to contact with minors. There may be specific guidance on community organizations.

- For the member whose record was expunged, find out more details. Expungement sometimes means charges were lowered or pleas changed. Consult with a legal professional about any protections or limitations that still apply.

- Develop formal participation policies for background checks, registered sex offender status, and the actions your organization will take based on offense history. Document these policies and apply uniformly.

- Be sensitive to rehabilitation and second chances as you make decisions. However, your foremost priority should be providing a safe space for any minors involved in your programs. Some level of caution seems warranted given the nature of this orchestra's activities.

The most prudent approach is likely excluding registered sex offenders from participation out of an abundance of caution. But do consult local laws and legal counsel to determine any requirements or restrictions in New Mexico specifically. Create thoughtful policies that balance opportunities for rehabilitation and second chances with your role providing safe spaces for young musicians.

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