Statute text
(1) Any person who knowingly marries, inflicts sexual penetration or sexual intrusion on, or subjects to sexual contact, as defined in section 18-3-401, an ancestor or descendant, including a natural child, child by adoption, or stepchild twenty-one years of age or older, a brother or sister of the whole or half blood, or an uncle, aunt, nephew, or niece of the whole blood commits incest, which is a class 4 felony. For the purpose of this section only, "descendant" includes a child by adoption and a stepchild, but only if the person is not legally married to the child by adoption or the stepchild.
(2) When a person is convicted of, pleads nolo contendere to, or receives a deferred sentence for a violation of the provisions of this section and the victim is a child who is under eighteen years of age and the court knows the person is a current or former employee of a school district or a charter school in this state or holds a license or authorization pursuant to the provisions of article 60.5 of title 22, C.R.S., the court shall report such fact to the department of education.
History
Source: L. 71: R&RE, p. 448, 1. C.R.S. 1963: 40-6-301. L. 83: Entire section amended, p. 695, 6, effective June 15. L. 86: Entire section amended, p. 770, 8 effective July 1. L. 90: Entire section amended, p. 1025, 7, effective July 1. L. 2000: (2) amended, p. 1847, 32, effective August 2. L. 2003: (2) amended, p. 2514, 2, effective June 5.
Annotations
ANNOTATION
Annotations
Law reviews. For article, "Incest and Ethics: Confidentiality's Severest Test", see 61 Den. L.J. 619 (1984).
Annotator's note. Since 18-6-301 is similar to former 40-9-4, C.R.S. 1963, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.
Under former section essential elements of incest were (1) the act of sexual intercourse; and, (2) such an act between persons related within the prohibited degrees defined by statute. McGee v. People, 160 Colo. 46, 413 P.2d 901 (1966).
Neither the age of the victim nor the age of the perpetrator is material as a requisite of this offense. McGee v. People, 160 Colo. 46, 413 P.2d 901 (1966).
Neither is the unwed status of the female an element. McGee v. People, 160 Colo. 46, 413 P.2d 901 (1966).
Rape and incest are separate and distinct crimes, with certain different elements essential to their proof. McGee v. People, 160 Colo. 46, 413 P.2d 901 (1966).
Either or both of these crimes may be charged in an appropriate factual situation. Where an act of sexual intercourse occurs between male and female persons who are related within certain prohibited degrees, where the female is unmarried and under the age of 18, and the male is over the age of 18 years, both the crime of statutory rape and the crime of incest could have been committed in the same transaction, and the people may charge the male participant with either or both crimes. McGee v. People, 160 Colo. 46, 413 P.2d 901 (1966).
The courts failure to give a straightforward negative response to the jurors' question concerning the definition of "sexual penetration" was harmless error. In order to convict the defendant of first degree sexual assault or incest the jurors had to accept the victim's testimony because the victim testified unequivocally to actual sexual intercourse while the defendant denied any improper touching at all. People v. Fell, 832 P.2d 1015 (Colo. App. 1991).
Retrial on habitual criminality barred notwithstanding trial court's erroneous interpretation or application of substantive law in dismissing habitual charges against the defendant where such dismissal occurs after jeopardy attached upon the impaneling and swearing of the jury. People v. Hrapski, 718 P.2d 1050 (Colo. 1986).
Evidence held sufficient to sustain conviction under this section. Kingsbury v. People, 44 Colo. 403, 99 P. 61 (1908).