Sexual Assault Cases – Colorado Statutory Authority

by Allen C. Gasper
Senior Partner
The Gasper Law Group

Unlawful Sexual Behavior is found in Colorado Revised Statutes § 18-3-401 and following. It is important to understand several definitions that are included in the Statutes:

1. “Consent” means cooperation in act or attitude pursuant to an exercise of free will and with knowledge of the nature of the act. A current or previous relationship shall not be sufficient to constitute consent under the provisions of this Part 4. Submission under the influence of fear shall not constitute consent. Nothing in this definition shall be construed to affect the admissibility of evidence or the burden of proof in regard to the issue of consent under this Part 4.

2. “Intimate Parts” means the external genitalia or the pernium or the anus or the buttocks or the pubes or the breast of any person.

3. “Pattern of Sexual Abuse” means 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.

4. “Physically Helpless” means unconscious, asleep or otherwise unable to indicate willingness to act.


5. One in “Position of Trust” includes, but is not limited to, any person who is a parent or acting in the place of a parent and charged with any of a parent’s rights, duties or responsibilities concerning a child, including a guardian or someone otherwise responsible for the general supervision of a child’s welfare, or a person who is charged with any duty or responsibility for the health, education, welfare or supervision of a child, including foster care, child care, family care, or institutional care, either independently or through another, no matter how brief, at the time of an unlawful act.

6. “Sexual Contact” means the knowing touching of the victim’s intimate parts by the actor, or of the actor’s intimate parts by the victim, or the knowing touching of the clothing covering the immediate area of the victim’s or actor’s intimate parts if that sexual contact is for the purposes of sexual arousal, gratification or abuse.

7. “Sexual Intrusion” means any intrusion, however slight, by any object or any part of a 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 be reasonably construed as being for the purposes of sexual arousal, gratification or abuse.

8. “Sexual Penetration” means sexual intercourse, cunnilingus, fellatio, analingus, or anal intercourse. Emission need not be proved as an element of any sexual penetration. Any penetration, however slight, is sufficient to complete the crime.

CHARGES
Sexual Assault – Class 4 Felony
Pertinent Statutes (Taken from the Colorado Revised Statutes)
C.R.S. 18-3-402 (1): Any person who knowingly inflicts sexual intrusion or sexual penetration on a victim commits assault if (a) the actor causes submission of the victim by means of sufficient consequence reasonably calculated to cause submission against the victim’s will; or (b) the actor knows that the victim is incapable of appraising the nature of the victim’s conduct; or (c) the actor knows that the victim submits erroneously, believing the actor to be the victim’s spouse; or (d) at the time of the commission of the act, the victim is less than fifteen (15) years of age and the actor is at least four (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 fifteen (15) years of age and the actor is at least ten (10) years older than the victim and is not the spouse of the victim.

Sexual Assault – Class 3 Felony
C.R.S. 18-3-402(3): If committed under the circumstances of paragraph (e) of subsection (1) of this section, sexual assault is a class 1 misdemeanor and is an extraordinary risk crime that is subject to the modified sentencing range specified in C.R.S. 18-1.3-501(3)
C.R.S. 18-3-402(3.5): Sexual Assault is a class 3 felony if committed under circumstances described in paragraph (h) of subsection (1) of this section, which states: “The victim is physically helpless and the actor knows the victim is physically helpless and the victim has not consented.”
C.R.S. 18-3-402(4): Sexual assault is a class 3 felony if it is attended by any one or more of the following circumstances:
(a) The actor causes submission of the victim through the actual application of physical force or physical violence: or
(b) The actor causes submission of the victim by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone, and the victim believes that the actor has the ability to execute these threats; or
(c) The actor causes submission of the victim by threatening to retaliate in the future against the victim, or any other person, and the victim reasonably believes that the actor will execute this threat. As used in this paragraph (c), “to retaliate” includes threats of kidnapping, death, serious bodily injury, or extreme pain; or
(d) The actor has substantially impaired the victim’s power to appraise or control the victim’s conduct by employing, without the victim’s consent, any drug, intoxicant or other means for the purpose of causing submission.

Sexual Assault – Class 2 Felony
Pertinent Statutes (Taken from the Colorado Revised Statutes)
C.R.S. 18-3-402 (5)(a): Sexual assault is a class 2 felony if any one or more of the following circumstances exist:
(I) In the commission of the sexual assault, the actor is physically aided or abetted by one or more other persons; or
(II) The victim suffers serious bodily injury; or
(III) The actor is armed with a deadly weapon or an article used or fashioned in a manner to cause a person to reasonably believe that the article is a deadly weapon or represents verbally or otherwise that the actor is armed with a deadly weapon and uses the deadly weapon, article or representation to cause submission of the victim.
(b)(I) If a defendant is convicted of sexual assault pursuant to this subsection (5), the court shall sentenced the defendant in accordance with section 18-1.3-401(8)(e). A person convicted solely of sexual assault pursuant to this subsection (5) shall not be sentenced under the crime of violence provisions of section 18-1.3-406(2). Any sentence for a conviction under this subsection (5) shall be consecutive to any sentence for a conviction for a crime of violence under section 18-1.3.406.
(6) Any person convicted of felony sexual assault committed on or after November 1, 1998, under any of the circumstances described in this section shall be sentenced in accordance with the provisions of Part 10 of article 1.3 or this title.

Probation Requirements for Sex Offenders
If a defendant is convicted of a sex crime and is granted probation, a probation sentence period of as much as life may be imposed depending on the seriousness of the offense. If granted probation for sex crime, an individual will be required to participate in sex offense specific treatment for a significant period of time. Prior to sentencing, the court will order a Sex Offense Specific Evaluation, conducted through the Probation Department with a SOMB (Sex Offense Management Board) certified evaluator. The structure and requirements of this treatment are standardized statewide by the SOMB. A person who is investigated for or charge with a sex crime will soon learn of the drastic restrictions and court involvement after he reviews the SOMB Guidelines. A list of potential probation guidelines is listed as follows:
Sex Offender Intensive Supervised Probation: You will be supervised on Sex Offender Intensive Supervised Probation (SOISP), pursuant to C.R.S. § 18-1.3.1007, until further Order of the Court.
Registration:

Pursuant to C.R.S. § 16-22-106(1)(a), and C.R.S. § 16-22-108, you must register as a sex offender with local law enforcement agency within five (5) business days after being given notice to register. If you move, you must re-register within five (5) business days following your move. Also, you must fill out an address change form with the law enforcement office with which you last registered. Regardless of whether you move, you must register annually on your birth date per statute.

Genetic Marker Testing: If you are convicted of any Felony or Misdemeanor offense involving unlawful sexual behavior or if you receive a deferred sentence for an offense involving unlawful sexual behavior, you shall be required to submit to and pay for a test of your biological substance to determine markers (DNA) in accordance with C.R.S. § 16-11-102.4
***You shall have no contact with any children under the age of eighteen (18), including your own children, nor shall you attempt to contact except under circumstances ordered by the Court and approved in advance and in writing by the Probation Officer in consultation with the community supervision team. Contact includes correspondence, written or verbal, telephone contact or any communication through a third party.

***If you have incidental contact with children, you will be civil and courteous to the children and immediately remove yourself from the situation. You will discuss the contact at your next treatment session and your next probation appointment.

***You shall not reside or be in a residence with any children under the age of eighteen (18), including your own children, unless ordered by the Court.

***You shall have no contact with any victim (the victim of the current offense or a victim from any other offense) including correspondence, telephone contact or communication through a third party – except under circumstances approved in advance and in writing by the Probation Officer in consultation with the community supervision team. You shall not enter onto the premises, travel past or loiter near where the victim resides.

***You shall not go to or loiter near schoolyards, parks, playgrounds, swimming pools, arcades or other places primarily used by children under the age of eighteen (18).

***You must inform your Probation Officer of all your significant relationships and you may be required by the Probation Officer to inform certain people of your present offense and restrictions. You shall not date or marry anyone who has children under the age of eighteen (18), unless approved in advance and in writing by the Probation Officer in consultation with the community supervision team.

***You shall not be employed or participate in any volunteer activity where you have contact with children under the age of eighteen (18) except under circumstances approved in advance and in writing by the Probation Officer in consultation with the community supervision team.

***You shall not access, possess, utilize or subscribe to any sexually oriented or sexually stimulating material – to include, but not limited to, mail, computer, television or telephone, nor patronize any place where such material or entertainment is available.

***Any change of residence must receive prior approval by the Probation Officer and those with whom you reside must know that you are a sex offender.

***You shall abide by any curfew imposed by the Probation Officer.

***You shall not hitchhike or pick up hitchhikers.

***You shall attend and actively participate in a sex offender evaluation and treatment program approved by the Probation Officer. You will abide by the rules of the treatment program and the treatment contract, and you will complete successfully the program to the satisfaction of the Probation Officer and the Treatment Provider.

***You will be financially responsible for all evaluations and treatment, unless other arrangements have been made through your Probation Officer or Treatment Provider.

***You shall not change Treatment Programs without prior approval of the Probation Officer.

***You shall submit, at your own expense, to any program of psychological or physiological assessment and monitoring at the direction of the Probation Officer or Treatment Provider. This includes, but is not limited to: polygraphs, plethysmographs, and/or visual reaction time measuring instruments to assist in treatment, planning and case monitoring.

***You shall sign a Release of Information to allow the Probation Officer to communicate with the members of the community supervision team. This will include a Release of Information to the therapist of the victim of your offense.

***You shall not purchase, possess or consume alcoholic beverages, nor shall you frequent nor patronize any establishment where the primary source of income is through the sale of alcoholic beverages, without permission from your Probation Officer and the community supervision team.

***You shall not purchase, possess nor utilize any mind altering or consciousness altering substance without a written, lawful prescription.

***You shall not be allowed to subscribe to any internet provider by modem, LAN, DSL or any other avenue (to include, but not limited to, satellite dishes, PDAs, electronic games, web televisions, internet appliances and cellular/digital telephones) and shall not be allowed to use another person’s internet or use the internet through any venue until approved by the supervision team. When access has been approved, you agree to sign and comply with the conditions of the “Computer Use Agreement) – JDF 321P. Additionally, you will allow your Probation Officer, or other trained person to conduct searches of computers or other electronic devices used by you. The person conducting the search may include a non-judicial employee and you may be required to pay for such a search.

***You will not be allowed to possess or view any materials, to include photos or videos, or souvenirs of your victim(s).

***You shall not use or possess distance vision enhancing or tunnel focusing devices, any camera or video recording devices except under circumstances approved in advance and in writing by the Probation Officer in consultation with the community supervision team.

***You may be required to submit safety plans for approval by the community supervision team in order to manage your risk to the community.

***You shall allow your Probation Officer to search your personal residence or vehicle. Your personal property is subject to seizure if it violates any of the terms and conditions or your probation.

***You may be subject to location monitoring using Electronic Home Monitoring (EHM), Global Position Satellite (GPS) or other forms of electronic monitoring.

***You shall not utilize by any means any social networking forums offering an interactive, user-submitted network of friends, personal profiles, blogs, chat rooms or other environment which allows for real-time interaction with others without permission from the Probation Officer and the community supervision team.

***Other conditions may be required based upon your particular case, court jurisdiction, and Probation Officer.

If a prison sentence is imposed, either because probation was denied or because probation was granted but subsequently revoked and the felony is a Class 4 or greater, the defendant will be sentenced pursuant to C.R.S. 18-1.3-1004 (Indeterminate Sentence) to no less than a certain minimum sentence and no more than life. ( Sex Offender Lifetime Supervision Act of 1998). It is possible the defendant convicted of a Class 4 felony or greater might serve a sentence for the rest of his natural life. Decisions regarding release at an undetermined future date or a decision which never releases the defendant is within the sole discretion of the Colorado Parole Board.

Sex offenses require the effective assistance of Attorneys who are very familiar with the guidelines and procedures of this particular type of case. Seeking legal counsel for representation in a Sex related criminal accusation should include a thorough inquiry of the Attorney’s experience and skill in dealing with such cases.