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Sexual Assault – C.R.S. 18-3-402(1)(d)

Victim Incapable of Understanding Her Actions

Definition and Elements

To prove that a defendant committed the criminal offense of sexual assault by taking advantage of a victim who is incapable of appraising the nature of her own actions, the prosecutor must prove each of these elements:

  1. The defendant subjected the victim to sexual intrusion or sexual penetration.
  2. The victim was in an altered mindset.
  3. The victim’s altered mindset made it so that she was unaware of what she was doing or what was happening to her.

In short, the sexual assault victim incapable of appraising her actions subsection makes it a crime for one person to take advantage of another person’s altered mindset in order to have sex with her.

Examples of Sexual Assault (Victim Incapable of Understanding Her Actions)

Example 1

A college girl attended a fraternity party.  While she was at the party, someone put a drug in her drink that caused her to pass out on a bed.  After she passed out, one of the people at the party went into the bedroom and had sex with her.

Example 2

A man is taking care of a girlfriend who was in a serious car accident.  That girlfriend takes too many prescription medications and passes out.  The man gropes her breasts and vagina while she is passed out.

Defenses to Sexual Assault (Victim Incapable of Understanding Her Actions)

Consent may be an available defense to this charge.  Consent can occur even when someone is intoxicated.  Consent occurs when one person voluntarily agrees to the request of another to do something sexual.  Consent can be implicit or explicit.  Implicit consent happens when one person’s actions lead another person to believe they have consent to perform a sexual act.  Explicit consent occurs when one person tells another person they consent to a specific sexual act.

Criminal Penalties for Sexual Assault (Victim Incapable of Understanding Her Actions)

Sexual Assault (victim incapable of understanding her actions) is a felony with a sexual factual basis.  In the State of Colorado that means it carries the possibility of an indeterminate sentence.  The possible penalties for this charge can be a sentence to the Department of Corrections for a period of between two years to up to a maximum of the rest of a defendant’s life.  Additionally, a person convicted of sexual assault will be required to register as a sex offender and be placed on a sex offender registry.  Judges and prosecutors do not like sex assault charges.  It is one of those offenses that presents a high risk of actual prison time even for first offense.  This is especially true for cases involving the submission of the victim.