Boulder County Bar Association

The various offenses relating to unlawful sexual behavior as well as certain procedures and evidence rules are contained in part 4 of article 3 of Title 18. The Colorado legislature has significantly altered the prosecution and punishment of sex offenders in recently years and will likely to continue to do so in the future.

C.R.S. 18-3-402 prohibits sexual assault. The statute provides that a person commits sexual assault if the person knowingly inflicts sexual intrusion or penetration on a victim if a) the person causes the victim to submit by means of sufficient consequence reasonably calculated to cause submission against the victim's will or b) the person knows that the victim is incapable of appraising what the perpetrator is doing or c) the person knows that the victim erroneously believes the person is the victim's spouse or d) at the time of the commission of the act the victim is less than 15 and the person is at least 4 years older than the victim and is not the spouse of the victim or e) at the time of the commission of the act the victim is at least 15 but less than 17 or f) the person has authority over the victim and uses his position of authority to coerce the victim or g) the person while purporting to offer some medical service engages in some sort of treatment or examination for some other reason than a bona fide medical purpose.

The statute goes on to provide various levels of punishment. Section e is a class one misdemeanor. Sexual assault is a class three felony if any one or more of the following circumstances exist, a) the person causes submission of the victim by the actual application of physical force or b) the person causes submission of the victim by threat of imminent death or serious bodily injury or c) the person causes submission by threatening retaliation that the victim reasonably believes the person can execute or d) the person has substantially impaired the victim's power to understand or control the person's conduct by using drugs or other means or e) the victim is physically helpless and the person knows the victim is physically helpless and has not consented or f) the sexual assault of the person is physically aided or abetted by one or more other persons or g) bodily injury, or by a deadly weapon or a simulate deadly weapon and uses that to cause the submission of the victim.

Sexual intrusion is defined by any intrusion, however slight, by any object or any part of person's body except the mouth, tongue or penis into the genital or anal opening of another person's body if that sexual intrusion can reasonably be construed as being for the purpose of simple arousal, gratification, or abuse. Sexual penetration means sexual intercourse, cunnilingus, fellatio, analingus or anal intercourse. Consent means cooperation in the acts or attitudes pursuant to the exercise of free will and with knowledge of the nature of the act. One is a position of trust includes parents, anyone acting in the place of parents and charged with the parent's rights and duties, anyone charged with the health, education and welfare of and supervision of a child.

Unlawful sexual contact is committed when a person knowingly subjects the victim to any sexual contact if a) the person knows the victim does not consent or b) the person knows the victim is incapable of appraising what the person is doing or c) the victim is physically helpless and the person knows that and that the victim has not consented, d) the person has substantially impaired the victim's power to control the person's behavior by using alcohol or drugs, e) the victim is in custody, or in a hospital, the person has supervisory or disciplinary authority and uses his position of authority to coerce the victim to submit or f) the person engages in treatment or examination of the victim for other than bona fide medical purposes.

This statute, C.R.S. § 18-03-404 also makes it illegal for any person to induce or coerce a child to expose the child's intimate parts or engage in any sexual conduct, contact or sexual intrusion for the purpose of the person's own sexual gratification. Finally the statute provides that a person commits unlawful sexual contact if the person knowingly observes or takes a photograph of a person's intimate parts without that person's consent in a situation where the person has a reasonable expectation of privacy, and the observation or the photograph is for the observer's own sexual gratification. Sexual contact is the knowing touching of the victim's intimate parts by the actor or the actor's intimate parts by the victim or the knowing touching of the clothing covering the immediate area of the victims' or actor's intimate parts if that contact is for the purpose of sexual arousal, gratification or abuse. Intimate parts is defined as the external genitalia or the perineum or the anus or the buttocks or the pubis or the breast of any person.

Unlawful sexual contact is a class 1 misdemeanor and is a class 4 felony if the defendant causes the victim to submit by the use of force.

C.R.S. § 18-3-405 prohibits sexual assault on a child. The statute makes it illegal for anyone to subject another person who is not his spouse to any sexual contact if that person is less than 15 years of age and the defendant is at least 4 years older than the victim. Sexual assault on a child is a class 4 felony but it is increased to a class 3 felony if the defendant a) applies force against the victim in order to facilitate the sexual contact; b) the defendant threatens death or serious bodily injury and the victim believes the defendant has the ability to execute the threat; c) the defendant threatens future retaliation and the victims believes the defendant could execute that threat; or d) the defendant commits the offense as a pattern of sexual abuse. A pattern of sexual abuse involves the commission of two or more incidents of sexual contact involving a child when such offenses are committed by an actor upon the same victim.

A variation of this statute is found in C.R.S. 18-03-405.3, which is entitled Sexual assault on a child by one in a position of trust. That statute provides that anyone who knowingly subjects another person, not his spouse, to any sexual contact, commits this crime. As previously noted a position of trust is defined by and to mean to include the parents, anyone acting in place of the parent in charge of the parent's duties, anyone else responsible for the child's welfare, or any person charged with the duty and responsibility for the health, education and welfare or supervision of the child, not matter how brief that supervision may be.

The final substantive crime established by this part 4 is entitled sexual assault on a client by a psychotherapist, and is found at C.R.S. § 18-03-405.5. This statute provides that if a person knowingly inflicts penetration or sexual intrusion on a victim commits aggravated sexual assault on a client if the defendant is a psychotherapist and the victim is a client of the psychotherapist and the sexual penetration of intrusion occurs by means of therapeutic deception. This crime is a class 4 felony. The statute goes on to provide that anyone who knowingly subjects a victim to sexual contact commit sexual contact on a client if the defendant is a psychotherapist and the victim is a client of the psychotherapist or the actor is a psychotherapist and the victim is client and the assault occurred by means of therapeutic deception. The differences between these two offenses is that sexual assault on a client requires only sexual contact whereas aggravated sexual assault requires sexual penetration or intrusion. Sexual assault on a client is a class 1 misdemeanor. The statute further provides that consent by the client to sexual penetration or intrusion or contact shall not be a defense to the charge.

Part 4 goes on to set out various procedural and evidentiary rules governing the prosecution of sexual assault charges. C.R.S. §18-3-406 provides that if the crime happens on a child being less that 18 and the child was in fact at least 15, it is a defense to the charge if the defendant reasonably believed the child was 18 or older. On the other hand, the statute provides that if the criminality of the conduct depends on the child being below the age of 15, it is not a defense that the defendant did not know the child's age and that he believed that the child was legally old enough.

C.R.S. §18-3-407 limits the ability of attorneys to go into the sexual history of a victim or any other witness. The statute provides that evidence about specific incidences or prior or subsequent sexual conduct or opinion evidence of sexual conduct or reputation evidence about sexual conduct shall be presumed to be irrelevant. Such evidence, however, may be admitted if it is evidence of the victim's or witnesses' prior or subsequent sexual conduct with the defendant or if it is evidence of specific incidences of sexual activity showing the source or origin of semen, pregnancy, or disease to show that the act charged was committed by someone other than the defendant. The statute, commonly known as, the rape shield statute, goes on to provide that the court shall decide prior to trial whether or not any such evidence should be admitted in front of the jury. A lawyer seeking to admit such evidence must file a written motion at least one month prior to the trial accompanied by an affidavit that sets forth an offer of proof as to what evidence will be offered and what the purpose of the evidence is. C.R.S. 18-3-408 instructs trial courts to instruct juries to not allow gender bias or any bias on gender to influence their decision in a sexual assault case. The statute also prohibits trial courts from giving an instruction that the testimony of the victim of a sexual assault should be examined with caution because of the nature of the charge and that the charge is easy to make but difficult to defend.

Section 18-3-409 provides that it is not a defense to any of the charges described in part 4, that the defendant and the victim are married unless the specific statute specifically excludes a spouse. C.R.S. § 18-3-410 provides that none of the offenses set forth in this part 4 apply to any bona fide medical examination as long as they are consistent with reasonable medical practices.

Section 18-3-411 sets forth the statute of limitations for sex offenses and provides that charges should be filed within 10 years after the commission of the offense, if the offense is a felony. No person shall be tried for a misdemeanor offense unless the charge is filed within five years after the commission of the offense.

This same statute sets for two evidentiary rules. The first rule is that out-of-court statements made by a child describing any sexual contact, or intrusion or penetration that is not otherwise admissible through some statute of court rule may be admissible in any proceeding where the child is the victim of sexual assault pursuant to the special provisions of C.R.S. § 13-25-129. Section 13-25-129 relaxes the hearsay rule for the out-of-court statements of child victims of unlawful sexual offenses or child abuse. The statute provides that even if the statement isn't otherwise admissible under the rules of evidence, the trial court may admit the statements if the trial court is satisfied that the "time, content and circumstances of the statement provide certain safeguards", and the child either testifies or is unavailable as a witness and there is corroboration to the act which is the subject of the child's statement.

Part 4 also contains other evidentiary rules. C.R.S. § 18-413 allows for the videotaping of the child witnesses in these cases if necessary to eliminate or reduce trauma associated with the child testifying in trial in front of a jury. C.R.S. § 18-3-413.5 provides for the use of closed circuit testimony for the child when it is necessary to reduce the trauma to the child that would occur if the child had to testify live in front of the jury.

In 1998, the legislature passed C.R.S. § 18-3-412.5, setting forth the duty to register on sex offenders. Sex offenders are required to register with probation officers or parole officers or other appropriate law enforcement officials. Whenever they move, whenever they are released from jail or from community corrections settings, whenever they change their name, and annually thereafter.