Elements and Definitions of Unlawful Sexual Contact – C.R.S. 18-3-404
In Colorado, a person commits the crime of unlawful sexual contact when they subject another person to sexual contact against their will or knowledge.
To prove that someone committed the criminal offense of unlawful sexual contact, the prosecutor must prove that:
You subjected a victim to sexual contact; and
The victim was physically helpless; or
You impaired the victim’s ability to understand what was happening through the use of alcohol or drugs; or
You were in a supervisory role over a victim who was confined in a hospital or jail; or
The unlawful sexual contact occurred during an examination of the victim
In short, the unlawful sexual contact statute makes it a crime for someone to subject another person to sexual contact against their will.
WHAT IS THE DEFINITION OF SEXUAL CONTACT?
Sexual contact is defined several ways. The following is a list of how the Colorado Legislature has defined sexual contact in C.R.S. 18-3-401(4):
Knowingly touching a victim’s intimate parts or the clothing covering her intimate parts for the purpose of sexual gratification;
Knowingly having the victim touch your intimate parts or the clothing covering your intimate parts for the purpose of sexual gratification;
Knowingly ejaculating on a body part of the victim or any clothing covering her body parts; or
Knowingly causing your blood, urine, feces, or any other bodily substance to contact the victim or any clothing covering any of her body parts if done for the purpose of sexual arousal, gratification, or abuse.
WHAT ARE SOME EXAMPLES OF UNLAWFUL SEXUAL CONTACT
Example 1: A stranger is walking down the street. As he passes by a woman he finds attractive who is walking the opposite direction. When they cross paths, he squeezes her butt and keeps walking. He was turned on by the interaction, but the woman was not.
Example 2: A man is walking through a crowded bar full of women. As he passes by one of them, he rubs his crotch against her hand. He found this arousing, but the woman did not.
Example 3: A person is sitting in the back of a crowded bus. A woman is sitting next to him. The ride is a long one and the woman ends up falling asleep. While she is asleep, the man starts masturbating and ends up ejaculating on her jeans. She wakes up and calls the police.
WHAT ARE SOME OFFENSES THAT ARE RELATED TO UNLAWFUL SEXUAL CONTACT
Offenses related to unlawful sexual contact include:
Sexual Assault – Colorado Criminal Code – C.R.S. § 18-3-403
Failure to Register as a Sex Offender – Colorado Criminal Code – § C.R.S. 18-3-412.5
IS UNLAWFUL SEXUAL A CONTACT A MISDEMEANOR?
Unlawful Sexual Contact is typically a class one misdemeanor. However, if the victim is a child, the act was performed during a medical examination, or the person uses force, threats or intimidation to commit the crime, it becomes a class 4 felony.
DEFENSES TO UNLAWFUL SEXUAL CONTACT
Consent is a valid defense to most unlawful sexual contact charges. Denial is also a defense.
WHAT ARE THE PENALTIES FOR UNLAWFUL SEXUAL CONTACT UNDER C.R.S. § 18-3-404?
A person sentenced for the misdemeanor charge of unlawful sexual contact could receive a probationary sentence or a sentence to jail for a period of between 6-24 months.
A person sentenced for the felony charge of unlawful sexual contact could receive an indeterminate sentence to probation or an indeterminate sentence to prison for a period of between 2-6 years for charges related to the performance of a medical exam. If the person used threats, force, or intimidation to commit the unlawful sexual contact, then they will be sentenced to a mandatory indeterminate prison sentence of between 4-12 years.
WHAT IS THE DEFINITION OF “INTIMATE PARTS?”
Colorado defines intimate parts as the anus, buttocks, external genitalia, perineum, pubic hair, or breasts of any person. This definition can be found under C.R.S. 18-3-401(2).
WHAT IF THE SEXUAL CONTACT OCCURRED OVER A SHEET?
In People v. Pifer, 350 P.3d 936 (Colo. App. 2014), the defendant hired three girls between the ages of 9 and 12 to walk his dog. When they returned, he invited them inside his home. The girls went inside his house and started playing while he watched. He started chasing the girls around his home with a sheet while throwing it over them and tickling their intimate parts. The girls told their parents and the defendant was charged with unlawful sexual contact.
At trial, the defendant argued he was not guilty of “touching” any of the alleged victims because he never touched their skin or clothing as the unlawful sexual contact statute required. The court of appeals upheld his conviction and ruled that “touching” means to experience or perceive something through the tactile sense. In so ruling, the court of appeals held that the defendant’s conduct fell within the ordinary meaning of the word “touch” because a person engaging in his conduct would be able to perceive and experience the clothing covering the victims’ intimate parts through the tactile sense despite the fact that there was a sheet between his hand and the victims’ clothing.
WHAT ACTS CONSTITUTE SEXUAL GRATIFICATION?
In People v. Walker, 321 P.3d 528, (Colo. App. 2011), the defendant was a teacher at a middle school. He befriended three male students and invited them on hunting trips. Eventually, the teacher convinced the students’ parents to let them spend the night at his house the night before the hunting trips. While the boys were over at his house, he offered to give them a handgun if they agreed to let him take nude photos of them while they masturbated. At trial, the victims testified that the defendant appeared infatuated and intrigued by what he was doing while he was taking naked pictures of the them. The Court of appeals held that the victims’ description of the defendant was enough to prove that he took the naked photos for the purposes of his own sexual gratification.
