Common Legal Defenses in Colorado Sex Crimes Cases

Colorado charges of sexual assault or related sex crimes can result in a feeling of hopelessness and fear that for some can be debilitating. It is at this time that a cold and rational assessment of the legal defenses available to aggressively defend these charges is not only necessary it is essential.

This article reviews some of the most common legal defenses asserted by the defense in Colorado sex crimes prosecutions.

What are the Most Common Defenses in Colorado Sex Crimes Cases

The most common defense or techniques used in successful Colorado sex crimes defense theories are:

• The Consent Defense
• The Mistake-of-Fact Defense
• Delays in Prosecution of the Case
• Diminished Capacity and , Insanity,
• Voluntary Intoxication and
• Involuntary Intoxication
• The Consent Defense

The issue of consent is contested in many sexual offense cases. The defendant may raise the “consent defense” or claim the victim consented or acquiesced in some manner to the sexual act. The consent defense is a factual defense and several factors can affect what, if any, evidence may be offered by the defendant on the issue of consent.

It is always an element of every sex offense (except statutory rape) that the sexual act was committed without the consent of the victim. To satisfy this element, depending on the offense charged, the State must prove that the sexual act was completed due to forcible compulsion, or that it was committed against a victim who did not have the legal capacity to consent to the act.

The Definition of Consent in Colorado

“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.

Here are the various ways Sexual Assault can be charged under Colorado Law.

18-3-402. Sexual assault

1. Any actor who knowingly inflicts sexual intrusion or sexual penetration on a victim commits sexual assault if:
   1. The actor causes submission of the victim by means of sufficient consequence reasonably calculated to cause submission against the victim’s will; or
   2. The actor knows that the victim is incapable of appraising the nature of the victim’s conduct; or
   3. The actor knows that the victim submits erroneously, believing the actor to be the victim’s spouse; or
   4. At the time of the commission of the act, the victim is less than fifteen years of age and the actor is at least four years older than the victim and is not the spouse of the victim; or
   5. At the time of the commission of the act, the victim is at least fifteen years of age but less than seventeen years of age and the actor is at least ten years older than the victim and is not the spouse of the victim; or
   6. The victim is in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over the victim and uses this position of authority to coerce the victim to submit, unless the act is incident to a lawful search; or
   7. The actor, while purporting to offer a medical service, engages in treatment or examination of a victim for other than a bona fide medical purpose or in a manner substantially inconsistent with reasonable medical practices; or
   8. The victim is physically helpless and the actor knows the victim is physically helpless and the victim has not consente

Capacity (The Legal Ability) to Consent Statutory Rape

As regards an alleged victim’s capacity to consent, in some cases the consent defense is simply an untenable position. If a defendant is charged with statutory rape the State of Colorado only has to prove that penetration or sexual contact occurred. The victim’s consent is not an issue.

Once the suspect defendant admits that he had sexual intercourse with a child under 15 is established, the fact that he was guilty of statutory rape is no longer in dispute.

Colorado’s Rape Shield Law would also then prohibit the admission of evidence pertaining to a child’s previous sexual history.

Other Lack Of Capacity Issues

There may be other factual circumstances in which the alleged victim was legally incapable of consenting to the act or acts in question. In addition to incapacity due to age, a person is deemed incapable of consenting to a sexual act if he or she is mentally defective, mentally incapacitated, or physically helpless.

Unlike incapacity due to age, evidence of previous consensual acts between the defendant and the victim are not strictly prohibited when incapacity arises from one of these other incapacity allegations.

“Developmental disability” means a disability that has manifested before the person reaches twenty-two years of age, that constitutes a substantial disability to the affected individual, and is attributable to mental retardation or other neurological conditions when such conditions result in impairment of general intellectual functioning or adaptive behavior similar to that of a person with mental retardation .

“Mental disability” means a substantial disorder of thought, mood, perception, or cognitive ability that results in marked functional disability, significantly interfering with adaptive behavior. “Mental disability” does not include acute intoxication from alcohol or other substances, or any condition manifested only by antisocial behavior, or any substance abuse impairment resulting from recent use or withdrawal. However, substance abuse that results in a long-term, substantial disorder of thought, mood, or cognitive ability may constitute a mental disability

An alleged victim who has a “mental illness” or who is “mentally disabled,” “mentally incapable,” “mentally incapacitated,” or “physically helpless” is presumed to be legally incapable of giving consent. Consent is inapplicable to these offenses

The Mistake-of-Fact Defense in Sexual Assault Cases

The legal defense of mistake of fact is difficult to successfully assert. In a sexual assault case if the accused has a mistaken belief that the alleged victim had consented to sexual intercourse… the defense may be available.

The Colorado crime of sexual assault contains an element of non consensual intercourse accomplished by many possible means usually means of threats, force, or some kind of fraud and the state must prove each element of the crime beyond a reasonable doubt.

The element most critical in alleged rape cases is whether the accuser consented to the sex.

The Colorado Law That Addresses This Issue is in CRS 18-3-406

C.R.S.18-3-406 provides that if the crime depends upon the child-victim being less than 18, it is a defense to the charge that the defendant reasonably believed the child was 18 or older, as long as the child was in fact at least 15. BUT, the statute provides that if the criminality of the conduct depends on the child ‘s age as below the age of 15, it is not a legal defense that the defendant did not know the child’s age and actually believed the child was legally old enough.

By comparison another example of a mistake of fact is a defense to theft if the defendant establishes that he or she took the property under a reasonable but mistaken belief that he or she was the lawful possessor of the property.. the defense is available.

Here is the Colorado Criminal Jury Instruction on The Mistaken Belief Defense:

Effect of Ignorance or Mistake Upon Culpablity > (Mistaken Belief)

It is an affirmative defense to the crime of (insert name of crime) that the defendant engaged in the prohibited conduct under a mistaken belief, and due to this mistaken belief by the defendant he did not form the particular mental state required in order to commit the offense.

Delays in Prosecution. Statute of Limitations Felony Sex Offenses

Sex offenses, especially those committed against children, have their own categories of limitations to prosecution. The time period during which an individual may be prosecuted for a felony sex offense is ten years after the commission of the crime. The orosecution must commence within ten years after the victim reaches the age of 18 for the felony offenses of sexual assault and unlawful sexual contact when the victim is under the age of 18 at the time of the offense.

Prosecution for failure to register as a sex offender against children must commence within three years of the commission of the crime.

There is no statute of limitations for specified sex offenses against children.

Misdemeanor Sex Offenses

Prosecution of misdemeanor offenses charged under the sex assault (Section 18-3-402 (3), C.R.S.) and unlawful sexual contact (Section 18-3-404 (2), C.R.S.) statutes must be commenced within five years of the commission of the crime. All other misdemeanor sex offenses must be prosecuted within 18 months of the commission of the crime.

DNA Exception

In a case where a sex offense is reported to law enforcement officials within ten years of the commission of the crime and the identity of the offender is determined by DNA evidence, there is no time limit for commencing prosecution.

The Insanity and Diminished Capacity Defenses in Colorado

The insanity defense is an affirmative defense a defendant may raise in a criminal trial to establish that he or she should not be held criminally responsible for the crime charged.

16-8-101.5. Insanity Defined

The applicable test of insanity shall be:

1. A person who is so diseased or defective in mind at the time of the commission of the act as to be incapable of distinguishing right from wrong with respect to that act is not accountable; except that care should be taken not to confuse such mental disease or defect with moral obliquity, mental depravity, or passion growing out of anger, revenge, hatred, or other motives and kindred evil conditions, for, when the act is induced by any of these causes, the person is accountable to the law; or
2. A person who suffered from a condition of mind caused by mental disease or defect that prevented the person from forming a culpable mental state that is an essential element of a crime charged, but care should be taken not to confuse such mental disease or defect with moral obliquity, mental depravity, or passion growing out of anger, revenge, hatred, or other motives and kindred evil conditions because, when the act is induced by any of these causes, the person is accountable to the law.

(2) As used in subsection (1) of this section:

1. “Diseased or defective in mind” does not refer to an abnormality manifested only by repeated criminal or otherwise antisocial conduct.
2. “Mental disease or defect” includes only those severely abnormal mental conditions that grossly and demonstrably impair a person’s perception or understanding of reality and that are not attributable to the voluntary ingestion of alcohol or any other psychoactive substance but does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.

(3) This section shall apply to offenses committed on or after July 1, 1995.

The Intoxication Defenses in Colorado

There are two types of intoxication defenses that may be raised by a defendant in a criminal trial, voluntary intoxication and involuntary intoxication. In the context of a criminal trial, these defenses are raised to establish that the defendant did not possess the mens rea or criminal intent to commit the offense charged.

When raised, the defendant is required to set forth evidence regarding the level or degree of his or her intoxication that fairly casts doubt on the mens rea issue.

Voluntary Intoxication Defense

It appears to be universally accepted by courts that voluntary intoxication does not provide a complete defense or legal excuse for committing a criminal act.

Colorado and most jurisdictions have permitted limited use of this defense by defendants to negate a specific intent that is an element of a criminal offense.

Importantly, notwithstanding the assertion of this defense, the defendant can still be found guilty of any lesser included offense.

With regard to sexual offenses, as discussed above, the majority of legal authority suggests that voluntary intoxication is not ordinarily a defense to a general intent crime. However, under certain circumstances, the voluntary intoxication defense may be reasonably raised in sexual offense cases in which the offense charged is a specific intent crime.

Here is the Voluntary Intoxication Affirmative Defense Jury Instruction of Law:

You may consider evidence of self-induced intoxication in determining whether or not such intoxication negates the existence of the element of [with intent] [after deliberation and with intent] [intentionally].

This instruction is available only for offenses that require “intent”, “intentionally” or “after deliberation and with intent” as an element, but not for crimes of general intent.

If there is question as to the voluntariness of the defendant’s intoxication, give both this instruction and the following instruction on involuntary intoxication

The Involuntary Intoxication Defense in Colorado

The involuntary intoxication defense appears to be less common. Practically speaking, involuntary intoxication occurs in one of two ways. An individual is given an intoxicating substance without his or her knowledge. Or, and perhaps less often, a prescribed or over-the-counter medication has an adverse or unexpected effect on an individual resulting in the person’s intoxication.

In the context of a criminal trial, many courts have recognized that involuntary intoxication can provide a complete defense or legal excuse to criminal charges when the intoxication is to such a degree that it removes the defendant’s ability to distinguish between right and wrong.

It should be noted that the majority of courts expressly reject the proposition that addiction to alcohol or drugs constitutes involuntary intoxication.

Here is the Involuntary Intoxication Affirmative Defense Jury Instruction of Law:

Intoxication Involuntary

It is an affirmative defense to the crime of (insert name of crime) that the defendant lacked the capacity to conform his conduct to the requirements of the law because of intoxication that was not self-induced.

In addition to proving all of the elements of the crime charged beyond a reasonable doubt, the prosecution also has the burden to disprove the affirmative defense beyond a reasonable doubt.

After considering all the evidence, if you decide the prosecution has failed to disprove beyond a reasonable doubt any one or more elements of the affirmative defense, you must return a verdict of not guilty.

This instruction can only be used when there has been evidence introduced that the intoxication was not self-induced. In all other situations concerning intoxication, the previous instruction is the only instruction applicable.

Please call our law firm if you have questions about.

Defenses in Colorado Sex Crimes Cases

H. Michael Steinberg has been a Colorado criminal law specialist attorney for 42 years (as of 2012). For the First 13 years of his career, he was an Arapahoe Douglas County District Attorney Senior prosecutor. In 1999 he formed his own law firm for the defense of Colorado criminal cases.

In addition to handling tens of thousands of cases in the trial courts of Colorado, he has written hundreds of articles regarding the practice of Colorado criminal law and frequently provides legal analysis on radio and television, appearing on the Fox News Channel, CNN and Various National and Local Newspapers and Radio Stations. Please call him at your convenience at 720-220-2277

If you have questions about Defenses In Colorado Sex Crimes Cases in the Denver metropolitan area and throughout Colorado, attorney H. Michael Steinberg will be pleased to answer those questions and also will provide quality legal representation to those charged in Colorado adult and juvenile criminal matters.

In the Denver metropolitan area and throughout Colorado, attorney H. Michael Steinberg provides quality legal representation to those charged in Colorado adult and juvenile criminal matters as regards Defenses In Colorado Sex Crimes Cases.

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