Sexual Assault – C.R.S. § 18-3-402

Elements of sexual assault in Colorado

In Colorado, a person commits sexual assault when he subjects another person to sexual intrusion or sexual penetration against their will.

To prove that a defendant committed the criminal offense of sexual assault by forcing the victim to submit, the prosecutor must prove each of these elements:

1. You subjected the victim to sexual intrusion or sexual penetration.
2. You took actions which were sufficient to cause the victim to submit to sexual intrusion or sexual penetration.
3. The victim did not want to submit to the sexual intrusion or sexual penetration.

The sexual assault statute makes it a crime for one person to force another person to have sexual contact with them against their will.  Sexual assault is a very serious crime.

What sexual acts qualify as sexual penetration or intrusion?

• Oral sex
• Anal sex
• Anilingus
• Penetrating someone with a foreign object
• Vaginal intercourse

C.R.S. § 18-3-402 does not criminalize behavior which only includes groping or brushing up against someone else’s intimate parts.  This type of non-consensual touching of someone’s intimate parts would most likely be charged under Colorado’s unlawful sexual contact statute (C.R.S. § 18-3-404).

Examples of sexual assault?

Example 1

A fraternity brother flirts with a girl at a house party and takes her into a bedroom.  Once they are inside the bedroom, they start to kiss and take off their clothes.  The fraternity brother starts to take off the girl’s underwear.  The girl tells him she wants him to stop, but he places himself on top of her, continues to touch her, and ends up placing a finger in her vagina before finally stopping.

Example 2

A boyfriend and girlfriend decide they want to have a nice evening at home.  They cook a nice dinner, eat dessert, and start watching a movie on the couch.  They take off their clothes and start touching each other’s genitals.  The girlfriend tells the boyfriend that she is tired and doesn’t want to have sex.  The boyfriend holds her down and rubs her vagina with his penis to get her in the mood.  The girlfriend gets upset and starts crying and the boyfriend stops.

Offenses related to sexual assault

Related offenses include:

1. Unlawful Sexual Contact – Colorado Criminal Code – C.R.S. § 18-3-404
2. Sexual Assault on A Child – Colorado Criminal Code – C.R.S. § 18-3-405
3. Sexual Assault on A Child by One in A Position of Trust – Colorado Criminal Code – C.R.S. § 18-3-405.3
4. Internet Sexual Exploitation of a Child – Colorado Criminal Code – C.R.S. § 18-3-405.4
5. Sexual Assault on a Client by Psychotherapist – Colorado Criminal Code – C.R.S. § 18-3-405.5
6. Invasion of Privacy for Sexual Gratification – Colorado Criminal Code – C.R.S. § 18-3-405.6
7. Unlawful Sexual Conduct by A Peace Officer – Colorado Criminal Code – C.R.S. § 18-3-405.7
8. Failure to Register as a Sex Offender – Colorado Criminal Code – C.R.S. § 18-3-412.5
9. Failure to Verify Location as a Sex Offender – Colorado Criminal Code – C.R.S. § 18-3-412.6
10. Sexual Assault (10-year age difference) – C.R.S. 18-3-402(1)(d)
11. Sexual Assault (victim incapable of understanding her actions) – C.R.S. 18-3-402(1)(d)

Are there different types of sexual assault charges?

There are many different types of charges that can be brought by the prosecution when they think someone has committed the crime of sexual assault.  However, the essential elements of the crime of sexual assault occur when one person subjects another person to sexual intrusion or sexual penetration against their will.

Within the Colorado Criminal Code, sexual assault can be charged under the following circumstances:

1. A person has sex with someone without her/his consent – sexual assault – lack of consent – C.R.S. § 18-3-402(1)(a); or
2. A person has sex with someone who is unable to understand what she/he is doing – sexual assault – incapable of appraising nature of conduct – C.R.S. § 18-3-402(1)(b); or
3. A person tricks someone into having sex with him/her by pretending to be that person’s spouse – C.R.S. § 18-3-402(1)(c); or
4. A person has sex with someone who is four years younger than him/her and is also under 15 years of age and not the person’s spouse – sexual assault – four-year age difference – C.R.S. § 18-3-402(1)(d); or
5. A person has sex with someone who is fifteen or sixteen years old and at least ten years younger than him/her –sexual assault – ten-year age difference – C.R.S. § 18-3-402(1)(e); or
6. A person in a supervisory or disciplinary role has sex with someone who is in custody at a jail, hospital, or other type of institution – sexual assault – abuse of power – defense: contact was incident to lawful arrest – C.R.S. § 18-3-402(1)(f); or
7. A medical service professional provides treatment or performs an examination on someone for reasons unrelated to medical care or substantially inconsistent with medical standards – sexual assault – medical provider – C.R.S. § 18-3-402(1)(g); or
8. A person has sex with someone whom he/she knows is physically helpless – sexual assault – physically helpless – C.R..S. § 18-3-402(1)(h).

Classifications of sexual assault  – C.R.S. § 18-1.3-401)

Sexual assault is presumptively classified as a class 4 felony C.R.S. § 18-3-402(2).

There are some aggravating factors that can turn sexual assault into a class 3 or a class 2 felony.  There are also some mitigating factors that can turn sexual assault into a class 6 felony.

Class 2 felonies:

1. If the defendant sexually assaults the victim while being helped by one or more other people. C.R.S. § 18-3-402(5)(a)(I).
2. If the defendant seriously injures the victim during the sexual assault. C.R.S. § 18-3-402(5)(a)(II).
3. If the defendant causes someone to submit to a sexual assault while armed with a deadly weapon or representing that he/she has a deadly weapon. C.R.S. § 18-3-402(5)(a)(III).

Class 3 felonies:

1. If the defendant has sex with someone who is helpless, physically. – C.R.S. § 18-3-402(1)(h).
2. If the defendant uses physical violence or physical force to commit the sexual assault. C.R.S. § 18-3-402(4)(a).
3. If the defendant forces a victim to have sex with him/her by kidnapping the victim, or threatening to kill, seriously injure, or cause the victim extreme pain. C.R.S. § 18-3-402(4)(b).
4. If the defendant makes a victim have sex with him/her by threatening to retaliate against the victim, or someone else. C.R.S. § 18-3-402(4)(c).
5. If a defendant drugs a victim such that victim’s ability to understand or control her/his conduct was substantially impaired. C.R.S. § 18-3-402(4)(d).

Class 6 felony:

1. C.R.S. § 18-3-402(1)(e) – ten-year age difference.

Defenses to sexual assault

Criminal defense lawyers could raise many potential defenses to the charge of sexual assault.  Those defenses could include:

False Allegations

One common argument is that the allegations are completely false.  Your lawyer could argue that the victim is fabricating her story.  For this defense to be presented persuasively, your lawyer will need to investigate the case, interview witnesses, collect evidence, and present mitigation to the district attorney and the jury that helps show why nobody should believe any of her claims.

Consent

Consent may be an available defense to sexual assault.  It occurs when one person voluntarily agrees 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 given consent to perform a sexual act.  Explicit consent occurs when one person tells another person they consent to a specific sexual act.

Mistake of fact

This defense could apply to certain types of sexual assault charges if it negates the mental state required to commit the crime.  If mistake of fact applies, it would be an affirmative defense to the charge.

Denial – Your defense lawyer could argue that no sexual penetration or intrusion occurred.

Penalties for sexual assault under C.R.S. § 18-3-402?

There are several classifications and associated penalties for the charge of sexual assault.

Class 2 felony

This type of sexual charge is the most serious type, and often involves the victim suffering serious bodily injury, multiple offenders, and/or the use of a deadly weapon during the commission of the crime. The penalties for the class 2 felony of sexual assault are:

• A 16-to-48-year indeterminate sentence (an indeterminate sentence means the judge imposes a minimum sentence of between 16 to 48 years and a maximum sentence of up to life in prison and then the parole board determines when a defendant is released after the minimum sentence is served);
• Lifetime supervision under the indeterminate sentencing statute;
• Requirement that the defendant register as a sex offender.

Class 3 felony

This classification of sexual assault charges is used for crimes in which the defendant impaired the victim by giving, or tricking her into taking, alcohol or drugs, or by using threats of violence against her, or in cases when the victim has not consented or has been kidnapped or made physically helpless. The penalties for the class 3 felony of sexual assault are:

• A 10-to-32-year indeterminate sentence (an indeterminate sentence means the judge imposes a minimum sentence of between 10 to 32 years and a maximum sentence of up to life in prison and then the parole board determines when a defendant is released after the minimum sentence is served);
• Lifetime supervision under the indeterminate sentencing statute;
• Requirement that the person register as a sex offender.

Class 4 felony

This type of sexual assault charge typically includes acts involving sexual intrusion or penetration involving improper medical care, or sexual crimes committed by someone in a supervisory role over a victim who is in the custody of law enforcement, a hospital, or some other type of similar place of confinement. The penalties for the class 4 felony of sexual assault could be:

• A 2-to-8-year indeterminate sentence (an indeterminate sentence means the judge imposes a minimum sentence of between 2 to 8 years and a maximum sentence of up to life in prison and then the parole board determines when a defendant is released after the minimum sentence is served);
• Probation;
• Lifetime supervision under the indeterminate sentencing statute;
• Requirement that the person register as a sex offender.

Class 1 misdemeanor

This is the least serious of the sexual assault charges and involves the sexual intrusion or penetration of a victim who is between the ages of 15 and 16 years old and at least 10 years younger than the defendant. The penalties for the class 1 misdemeanor of sexual assault could be:

• A 6-to-24-month sentence to jail;
• Requirement that the person register as a sex offender.

Sexual Assault is a serious crime

Sexual Assault is a serious felony and is punishable by the imposition of an indeterminate sentence.  It can carry a minimum of 2 years in prison up to the possibility of life sentence.  Sexual assault convictions could have adverse and negative consequences on a person’s immigration status and professional licenses.  Sexual assault convictions require people to register as a sex offenders.