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18-3-409. Marital defense.


Any marital relationship, whether established statutorily, putatively, or by common law, between an actor and a victim shall not be a defense to any offense under this part 4 unless such defense is specifically set forth in the applicable statutory section by having the elements of the offense specifically exclude a spouse.


Source: L. 75: Entire part R&RE, p. 631, 1, effective July 1. L. 88: Entire section R&RE, p. 725, 2, effective July 1.



Law reviews. For article, Mens Rea and the Colorado Criminal Code, see 52 U. Colo. L. Rev. 167 (1981).

Annotators note. The cases annotated below were all decided prior to the 1988 amendment to this section.

Marital exception of this section is neither arbitrary nor irrational as it may remove an obstacle to the resumption of normal marital relations and also avoids the difficult emotional issues and problems of proof inherent in this sensitive area. People v. Brown, 632 P.2d 1025 (Colo. 1981).

Section 18-3-402 and this section are severable, so that even if the former were invalidated the latter would still be capable of enforcement. People v. Brown, 632 P.2d 1025 (Colo. 1981).

Former law. For cases construing requirement of former rape statute that the victim could not be the wife of the actor, see Waelchi v. People, 77 Colo. 147, 234 P. 1113 (1925); Schreiner v. People, 95 Colo. 392, 36 P.2d 764 (1934); Efsiever v. People, 105 Colo. 88, 96 P.2d 8 (1939); McGee v. People, 160 Colo. 46, 413 P.2d 901 (1966).