Sex Crimes, the Statute of Limitations and the Effect of DNA Evidence

By Colorado Criminal Sex Crimes Defense Lawyer H. Michael Steinberg

A recent case by the Colorado Criminal Court of Appeals explains the role of DNA evidence in extending – actually removing the protection of the statute of limitations in Colorado Sex Crimes Offenses.

Here are the facts:

In 1992, a young woman was sexually assaulted by a home intruder. The DNA profile from the assault was uploaded to a national database in 2004, and in June 2005, the Denver Police Department was notified of a match to defendant’s DNA profile, which was later confirmed using a saliva sample from defendant.

The Suspect was apprehended and prosecuted.

He argued on appeal that because the ten-year statute of limitations had expired prior to the date the prosecution filed the charges against him, the district court did not have jurisdiction to enter a judgment of conviction against him.

The Colorado Court of Appeals held that by enacting a new law governing the statute of limitations in CRS § 16-5-401(8)(a.5), the Colorado General Assembly totally eliminated the statute of limitations for a narrow class of sex offenses.

Under the new law there was no longer a time limit for the prosecution of sexual assaults committed after July 1, 1991, where:

1. the defendant’s identity is determined in whole or in part by his or her DNA; and
2. the offense is reported to a law enforcement agency within ten years after the commission of the offense.

In this case it was undisputed that:

1. the alleged sexual assaults occurred after July 1, 1991;
2. defendant later was identified by his DNA profile; and
3. the victim reported the assaults to the police immediately after they occurred.

Therefore § 16-5-401(8)(a.5) applied by its plain language, and there was NO statutory time limit for the prosecution of the charges against defendant.

Here is the all of the Law on all aspects of the statute of limitations for criminal offenses for your review with a special emphasis in bold of sexual assault offenses:

1. 1. Except as otherwise provided by statute applicable to specific offenses, delinquent acts, or circumstances, no adult person or juvenile shall be prosecuted, tried, or punished for any offense or delinquent act unless the indictment, information, complaint, or petition in delinquency is filed in a court of competent jurisdiction or a summons and complaint or penalty assessment notice is served upon the defendant or juvenile within the period of time after the commission of the offense or delinquent act as specified below:

Murder, kidnapping, treason, any sex offense against a child, and any forgery regardless of the penalty provided: No limit.

Attempt, conspiracy, or solicitation to commit murder; attempt, conspiracy, or solicitation to commit kidnapping; attempt, conspiracy, or solicitation to commit treason; attempt, conspiracy, or solicitation to commit any sex offense against a child; and attempt, conspiracy, or solicitation to commit any forgery regardless of the penalty provided: No limit.

Vehicular homicide and leaving the scene of an accident that resulted in the death of a person: Five years

• Other felonies: Three years
• Misdemeanors: Eighteen months
• Class 1 and 2 misdemeanor traffic offenses: One year
• Petty offenses: Six months

For purposes of this section:

1. 1. “Delinquent act” has the same meaning as defined in section 19-1-103 (36), C.R.S.
   2. “Juvenile” means a child as defined in section 19-1-103 (18), C.R.S.
   3. “Petition in delinquency” means any petition filed by a district attorney pursuant to section 19-2-512, C.R.S.
   4. “Sex offense against a child” means any “unlawful sexual offense”, as defined in section 18-3-411 (1), C.R.S., that is a felony.
   1.5
   1. Except as otherwise provided in paragraph (b) of this subsection (1.5), the provisions of paragraph (a) of subsection (1) of this section concerning sex offenses against children shall apply to offenses and delinquent acts committed on or after July 1, 1996.
   2. The provisions of paragraph (a) of subsection (1) of this section concerning sex offenses against children shall apply to an offense or delinquent act committed before July 1, 1996, if the applicable statute of limitations, as it existed prior to July 1, 2006, has not yet run on July 1, 2006.
   3. It is the intent of the general assembly in enacting the provisions of paragraph (a) of subsection (1) of this section concerning sex offenses against children to apply an unlimited statute of limitations to sex offenses against children committed on or after July 1, 1996, and to sex offenses against children committed before July 1, 1996, for which the applicable statute of limitations in effect prior to July 1, 2006, has not yet run on July 1, 2006.
2. The time limitations imposed by this section shall be tolled if the adult offender or juvenile is absent from the state of Colorado, and the duration of such absence, not to exceed five years, shall be excluded from the computation of the time within which any complaint, information, indictment, or petition in delinquency must otherwise be filed or returned.
3. 1. The period within which a prosecution must be commenced does not include any period in which a prosecution is pending against the adult defendant or juvenile for the same conduct, even if the indictment, information, complaint, or petition in delinquency which commences the prosecution is quashed or the proceedings thereon are set aside or are reversed on appeal.
   2. The period within which a prosecution must be commenced does not include any period in which a prosecution is pending against the adult defendant or juvenile for the same conduct, even if filed in a court without jurisdiction, when based on a reasonable belief the court possesses jurisdiction.
4. When an offense or delinquent act is based on a series of acts performed at different times, the period of limitation prescribed by this code or by the “Colorado Securities Act”, article 51 of title 11, C.R.S., starts at the time when the last act in the series of acts is committed.
   4.5 The period within which a prosecution must be commenced shall begin to run upon discovery of the criminal act or the delinquent act for:
   1. Offenses relating to the “Uniform Commercial Code”, pursuant to part 5 of article 5 of title 18, C.R.S.;
   2. Computer crime, pursuant to article 5.5 of title 18, C.R.S.;
   3. Theft, pursuant to section 18-4-401, C.R.S.;
   4. Theft of trade secrets, pursuant to section 18-4-408, C.R.S.;
   5. Defacing or destruction of written instruments, pursuant to section 18-4-507, C.R.S.;
   6. Criminal simulation, pursuant to section 18-5-110, C.R.S.;
   7. Obtaining signature by deception, pursuant to section 18-5-112, C.R.S.;
   8. Criminal impersonation, pursuant to section 18-5-113, C.R.S.;
   9. Offering a false instrument for recording, pursuant to section 18-5-114, C.R.S.;
   10. Dual contracts to induce loan, pursuant to section 18-5-208, C.R.S.;
   11. Issuing a false financial statement or obtaining a financial transaction device by false statements, pursuant to section 18-5-209, C.R.S.;
   12. Unlawful activity concerning the selling of land, pursuant to section 18-5-302, C.R.S.;
   13. Offenses relating to equity skimming, pursuant to part 8 of article 5 of title 18, C.R.S.;
       m.5 Offenses relating to identity theft, pursuant to part 9 of article 5 of title 18, C.R.S.;
   14. (m.5) Offenses relating to identity theft, pursuant to part 9 of article 5 of title 18, C.R.S.;
   15. Offenses relating to bribery and corrupt influences, pursuant to part 3 of article 8 of title 18, C.R.S.;
   16. Offenses relating to abuse of public office, pursuant to part 4 of article 8 of title 18, C.R.S.;
   17. Offenses relating to perjury, pursuant to part 5 of article 8 of title 18, C.R.S.;
   18. Offenses relating to the “Colorado Organized Crime Control Act”, pursuant to article 17 of title 18, C.R.S.;
   19. Unlawful concealment of transactions, pursuant to section 11-107-105, C.R.S.;
   20. Embezzlement or misapplication of funds, pursuant to section 11-107-107, C.R.S.;
   21. Unlawful acts or omissions relating to financial institutions, pursuant to section 11-107-108, C.R.S.;
   22. Criminal offenses relating to industrial banks, pursuant to section 11-108-801 (3), C.R.S.; and
   23. Criminal offenses relating to savings and loan associations, pursuant to section 11-41-127, C.R.S.
5. The period of time during which an adult person or juvenile may be prosecuted shall be extended for an additional three years as to any offense or delinquent act charged under sections 18-8-302, 18-8-303, 18-8-306, 18-8-307, 18-8-402, 18-8-406, 18-8-407, 39-21-118, and 39-22-621 (3), C.R.S.
6. Except as otherwise provided in paragraph (a) of subsection (1) of this section pertaining to sex offenses against children, the period of time during which an adult person or juvenile may be prosecuted shall be extended for an additional seven years as to any offense or delinquent act charged under section 18-3-402 or 18-6-403, C.R.S., or charged as criminal attempt, conspiracy, or solicitation to commit any of the acts specified in said sections.

7. When the victim at the time of the commission of the offense or delinquent act is a child under fifteen years of age, the period of time during which an adult person or juvenile may be prosecuted shall be extended for an additional three years and six months as to a misdemeanor charged under section 18-3-404, C.R.S., or criminal attempt, conspiracy, or solicitation to commit such a misdemeanor.
8. 1. Except as otherwise provided in paragraph (a) of subsection (1) of this section pertaining to sex offenses against children and except as otherwise provided in paragraphs (a.3) and (a.5) of this subsection (8), the period of time during which an adult person or juvenile may be prosecuted shall be ten years after the commission of the offense or delinquent act as to any offense or delinquent act:
      1. Charged under section 18-3-402, C.R.S., section 18-3-403, C.R.S., as said section existed prior to July 1, 2000, or section 18-6-403, C.R.S.;
      2. Charged as a felony under section 18-3-404, C.R.S.; or
      3. Charged as criminal attempt, conspiracy, or solicitation to commit any of the offenses specified in subparagraphs (I) and (II) of this paragraph (a).
      a.3 Except as otherwise provided in paragraph (a) of subsection (1) of this section concerning sex offenses against children, if the victim at the time of the commission of an offense or delinquent act is a child under eighteen years of age, the period of time during which an adult person or juvenile may be prosecuted shall be ten years after such victim reaches the age of eighteen years as to any offense or delinquent act:
      1. Charged as a felony under section 18-3-402, C.R.S., section 18-3-403, C.R.S., as said section existed prior to July 1, 2000, or section 18-3-404, C.R.S.; or
      2. Charged as criminal attempt, conspiracy, or solicitation to commit any of the offenses specified in subparagraph (I) of this paragraph (a.3). [The statute of limitations is lifted in the instance of DNA under these circumstances]
      a.5 Except as otherwise provided in paragraph (a) of subsection (1) of this section concerning sex offenses against children, in any case in which the identity of the defendant is determined, in whole or in part, by patterned chemical structure of genetic information, and in which the offense has been reported to a law enforcement agency, as defined in section 26-1-114 (3) (a) (III) (B), C.R.S., within ten years after the commission of the offense, there shall be no limit on the period of time during which a person may be prosecuted after the commission of the offense as to any offense charged:
      1. Under section 18-3-402, C.R.S., or section 18-3-403, C.R.S., as said section existed prior to July 1, 2000; or
      2. As criminal attempt, conspiracy, or solicitation to commit any of the offenses specified in subparagraph (I) of this paragraph (a.5).
   2. This subsection (8) shall apply to offenses and delinquent acts committed on or after July 1, 1984.
9. Notwithstanding the provisions of paragraph (a) of subsection (1) of this section, the period of time during which an adult person or juvenile may be prosecuted shall be five years after the commission of the offense or delinquent act as to a misdemeanor charged under section 18-3-404, C.R.S., or criminal attempt, conspiracy, or solicitation to commit such a misdemeanor. This subsection (9) shall apply to offenses and delinquent acts committed on or after January 1, 1986.
10. Notwithstanding the provisions of paragraph (a) of subsection (1) of this section, the period of time during which an adult person or juvenile may be prosecuted shall be three years after the date of the affected election as to a charge of any violation of any provision of the “Fair Campaign Practices Act”, article 45 of title 1, C.R.S., or any criminal attempt, conspiracy, or solicitation to violate any provision of the “Fair Campaign Practices Act”. This subsection (10) shall apply to offenses and delinquent acts committed on or after July 1, 1991.
11. Notwithstanding the provisions of paragraph (a) of subsection (1) of this section, the period of time during which an adult person or juvenile may be prosecuted shall be three years after the discovery of the offense or delinquent act as to any offense or delinquent act charged under section 18-4-408, C.R.S. This subsection (11) shall apply to offenses and delinquent acts committed on or after July 1, 1998.
12. The applicable period of limitations specified in subsection (1) of this section shall not apply to charges of offenses or delinquent acts brought to facilitate the disposition of a case, or to lesser included or non-included charges of offenses or delinquent acts given to the court or a jury at a trial on the merits, by the accused.