Statute text
As used in this part 4, unless the context otherwise requires:
(1) "Actor" means the person accused of a sexual offense pursuant to this part 4.
(1.5) "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. Nothing in this definition shall be construed to affect the admissibility of evidence or the burden of proof in regard to the issue of consent under this part 4.
(1.7) "Diagnostic test" means a human immunodeficiency virus (HIV) screening test followed by a supplemental HIV test for confirmation in those instances when the HIV screening test is repeatedly reactive.
(2) "Intimate parts" means the external genitalia or the perineum or the anus or the buttocks or the pubes or the breast of any person.
(2.4) "Medical-reporting victim" means a victim who seeks medical treatment services following a sexual assault but who elects not to participate in the criminal justice system at the time the victim receives medical services.
(2.5) "Pattern of sexual abuse" means the commission of two or more incidents of sexual contact involving a child when such offenses are committed by an actor upon the same victim.
(3) "Physically helpless" means unconscious, asleep, or otherwise unable to indicate willingness to act.
(3.5) One in a "position of trust" includes, but is not limited to, any person who is a parent or acting in the place of a parent and charged with any of a parent's rights, duties, or responsibilities concerning a child, including a guardian or someone otherwise responsible for the general supervision of a child's welfare, or a person who is charged with any duty or responsibility for the health, education, welfare, or supervision of a child, including foster care, child care, family care, or institutional care, either independently or through another, no matter how brief, at the time of an unlawful act.
(4) "Sexual contact" means:
(a) The knowing touching of the victim's intimate parts by the actor, or of the actor's intimate parts by the victim, or the knowing touching of the clothing covering the immediate area of the victim's or actor's intimate parts if that sexual contact is for the purposes of sexual arousal, gratification, or abuse;
(b) The knowing emission or ejaculation of seminal fluid onto any body part of the victim or the clothing covering any body part of the victim; or
(c) Knowingly causing semen, blood, urine, feces, or a bodily substance to contact any body part of the victim or the clothing covering any body part of the victim if that contact with semen, blood, urine, feces, or a bodily substance is for the purpose of sexual arousal, gratification, or abuse.
(5) "Sexual intrusion" means any intrusion, however slight, by any object or any part of a person's body, except the mouth, tongue, or penis, into the genital or anal opening of another person's body if that sexual intrusion can reasonably be construed as being for the purposes of sexual arousal, gratification, or abuse.
(6) "Sexual penetration" means sexual intercourse, cunnilingus, fellatio, anilingus, or anal intercourse. Emission need not be proved as an element of any sexual penetration. Any penetration, however slight, is sufficient to complete the crime.
(7) "Victim" means the person alleging to have been subjected to a criminal sexual assault.
History
Source: L. 75: Entire part R&RE, p. 627, 1, effective July 1. L. 83: (4) amended, p. 697, 1, effective March 3; (3.5) added, p. 693, 1, effective June 15. L. 86: (3.5) amended, p. 770, 6 effective July 1. L. 88: (2) amended, p. 712, 17, effective July 1. L. 89: (2.5) added, p. 903, 1, effective June 1. L. 90: (3.5) amended, p. 1028, 15, effective July 1. L. 92: (1.5) added, p. 322, 3, effective July 1. L. 93: (2) and (4) amended, p. 1731, 15, effective July 1. L. 2000: (1.7) added, p. 452, 5, effective April 24. L. 2003: (1) amended, p. 1432, 22, effective April 29. L. 2013: (2.4) added, (HB 13-1163), ch. 215, p. 895, 1, effective May 13. L. 2019: (4) amended, (HB 19-1155), ch. 76, p. 279, 1, effective July 1.
Annotations
Editor's note: This section is similar to former 18-3-409 as it existed prior to 1975.
Annotations
ANNOTATION
Annotations
Law reviews. For note discussing changes in terminology and classification of offenses of part 4 of this article, and constitutional issues raised thereunder, see 53 Den. L.J. 349 (1976).
Statute not void for vagueness due to definition of "position of trust", since a person of ordinary intelligence could readily understand its meaning and application. People v. Duncan, 33 P.3d 1180 (Colo. App. 2001).
Defendant charged under former section where conduct occurred prior to effective time of amendatory section. Where the criminal conduct charged in a prosecution for rape occurred prior to 3:50 p.m., July 1, 1975, the time the governor signed the bill amending this section and therefore the effective time of the amendment, the defendant was properly charged with rape under former 18-3-401. People v. Glenn, 200 Colo. 416, 615 P.2d 700 (1980).
Where assault established by evidence, intent to commit rape no defense. Where all the elements of the crime charged (attempt to commit third degree sexual assault) were established by the evidence, the fact that the defendant's actions might also be construed as evincing an intent to commit rape did not constitute a defense to the charge. People v. DeLeon, 44 Colo. App. 146, 613 P.2d 639 (1980).
Scientific evidence to support the victim's testimony is not a legal prerequisite to a jury's finding that the defendant is guilty of unlawful sexual behavior. People v. Graham, 678 P.2d 1043 (Colo. App. 1983), cert. denied, 467 U.S. 1216 (1984).
Definition of "sexual contact" construed. People v. Myers, 714 P.2d 513 (Colo. App. 1985); People v. West, 724 P.2d 623 (Colo. 1986); People in Interest of J.A., 733 P.2d 1197 (Colo. 1987).
Definition of the term "sexual contact" is not unconstitutionally vague. People v. West, 724 P.2d 623 (Colo. 1986); People in the Interest of J.A., 733 P.2d 1197 (Colo. 1987); People v. Jensen, 747 P.2d 1247 (Colo. 1987).
"[A]ny sexual contact" is as an unlimited, nonrestrictive phrase that generally encompasses a multitude of types of sexual contacts. People v. Woellhaf, 105 P.3d 209 (Colo. 2005).
Whether a juvenile acted for the purpose of sexual gratification is a separate element of the definition of "sexual contact" and must be determined on a case-by-case basis. The trier of fact must consider all relevant circumstances, including the juvenile's age and maturity, before inferring the requisite intent. People in Interest of J.O., 2022 COA 65M, 517 P.3d 1259.
It may not, and often will not, be appropriate for the fact finder to ascribe the same intent to a juvenile's act of "sexual contact" that one could reasonably ascribe to the same act of "sexual contact" if performed by an adult. Although a juvenile is capable of acting for the purpose of sexual gratification, there must be other evidence of the juvenile's sexual purpose beyond the sexual contact itself. People in Interest of J.O., 2022 COA 65M, 517 P.3d 1259.
"Sexual" in subsection (4) modifies not only "arousal" but also "abuse". People v. Lovato, 2014 COA 113, 357 P.3d 212.
Sexual abuse encompasses both physical and emotional pain, injury, or significant discomfort. People v. Espinosa, 2020 COA 63, 465 P.3d 114.
There is no requirement that there be sexual motivation or lewdness when proving sexual abuse, instead the intent must be to cause pain, injury, or discomfort to an intimate part. It is the nature of the act that makes the abuse sexual, not the motivation of the perpetrator. People v. Lovato, 2014 COA 113, 357 P.3d 212.
But the perpetrator's motivation is still relevant to the determination. While the perpetrator need not be motivated by passion, lust, lasciviousness, or lewdness, the perpetrator must act for the purpose of causing sexual humiliation, sexual degradation, or other physical or emotional discomfort of a sexual nature. People v. Espinosa, 2020 COA 63, 465 P.3d 114.
The distinction of numerous "intimate parts" merely demarcates different intimate parts of the human anatomy and has no effect on the scope of conduct the general assembly sought to criminalize. People v. Woellhaf, 105 P.3d 209 (Colo. 2005).
Semen does not constitute an "intimate part" for purposes of establishing "sexual contact". People v. Ramirez, 2018 COA 129, 488 P.3d 382.
Ejaculation of semen onto clothing covering another person's intimate parts may constitute "touching" for purposes of establishing "sexual contact". People v. Vinson, 42 P.3d 86 (Colo. App. 2002).
Striking a person's intimate parts with an implement or object, rather than with a part of the actor's own body, can constitute "touching" for purposes of subsection (4)(a). Whipping the victim with a belt on her buttocks for the purpose of sexual arousal, gratification, or abuse can constitute unlawful sexual contact. People v. Abdulla, 2020 COA 109M, 486 P.3d 380.
"Consent" and the affirmative defense of consent discussed in People v. Williams, 899 P.2d 306 (Colo. App. 1995).
Jury instruction on "consent" properly provided to jury. The instruction substantially tracked the language of this section. The slight variance from the statute was only to clarify properly that the definition was applicable to first degree sexual assault. The definition was important to explain to the jury the specialized meaning of "consent" in the context of sexual assault. People v. Pahlavan, 83 P.3d 1138 (Colo. App. 2003).
The term "pattern of sexual abuse" is clearly and unambiguously defined in this section and, therefore, the sentencing enhancement provision of 18-3-405 (2)(c) which incorporates that term is not unconstitutionally vague. People v. Longoria, 862 P.2d 266 (Colo. 1993).
The phrase "two or more incidents of sexual contact" in the definition of "pattern of sexual abuse" means that the sexual contacts must occur during distinct episodes of sexual assault and be separated by time or an intervening event. People v. Woellhaf, 87 P.3d 142 (Colo. App. 2003), rev'd on other grounds, 105 P.3d 209 (Colo. 2005).
The term "victim" means "intended victim" in the context of a conviction for attempted sexual assault. People v. Buerge, 240 P.3d 363 (Colo. App. 2009).
A defendant can be charged with one pattern count for each underlying substantive count. People v. Bobrik, 87 P.3d 865 (Colo. App. 2003).
Evidence sufficient to establish victim was "physically helpless". Record demonstrated that there was sufficient evidence from which the jury could find that the victim was unable to indicate a willingness to act and therefore "physically helpless" within the statutory definition of that term. There was testimony that the victim was virtually unable to converse and required total care; that she needed assistance in everything she did; that while she could at times respond to a simple yes-or-no question, her answers could be nonsensical or inaccurate; that she was physically incapable of protecting herself against any attack; that she was in a locked facility for her own protection, because she would otherwise wander away; and that the Alzheimer's disease affected her both mentally and physically. People v. Klausner, 74 P.3d 421 (Colo. App. 2003).
Allegations not sufficient to establish that defendant intended to engage in unlawful sexual contact as defined by this section and 18-3-404. Allegations that a defendant who was in his truck told a 10-year-old child on a sidewalk that she was "the perfect age for a boyfriend", asked the child if she had "ever touched it", and then stated that he was "just curious" were not sufficient to establish that defendant intended to engage in unlawful sexual contact. People v. Johnson, 2022 COA 139, __ P.3d __.
Including CRE 404(b) evidence that the defendant was previously charged with aggravated kidnapping in another state for allegedly persuading a five-year-old child to enter his car, driving the child to the store, and kissing the child on the lips before letting her go was still insufficient to convict the defendant under 18-3-305 (1). People v. Johnson, 2022 COA 139, __ P.3d __.
Trial court committed reversible error by refusing defendants' request to instruct the jury on the affirmative defense of consent where the evidence bearing on the possible existence of consent, while not strong, at least satisfied the "scintilla" standard required for an instruction on an affirmative defense. People v. Cruz, 903 P.2d 1198 (Colo. App. 1995).
Because the alleged victim's alleged consent would have "negative[d] an element of the [sexual assault] offense", the trial court was required to instruct the jury on the affirmative defense of consent. People v. Cruz, 903 P.2d 1198 (Colo. App. 1995).
A stepparent is in a position of trust for purposes of this section. People v. Brown, 749 P.2d 436 (Colo. App. 1987); People v. Brown, 761 P.2d 261 (Colo. App. 1988).
Jury could conclude that defendant was "in a position of trust" relative to the victim within the meaning of the applicable statute, where defendant lived in the same residence with the victim and her family and contributed to the household income, the victim spent hours alone with the defendant in his room, the victim was the only child the defendant allowed in his room, and neither the victim's mother nor any other individual intervened during the time that the victim was alone in the defendant's room. People v. Luman, 994 P.2d 432 (Colo. App. 1999) (decided prior to 1990 amendment).
Upon taking the victim to defendant's home where the two of them were to be alone, defendant assumed responsibility for the welfare and supervision of the child both en route and in the home. People v. Duncan, 33 P.3d 1180 (Colo. App. 2001).
Defendant in "position of trust" even though he was not performing a specific supervisory duty at the time of the unlawful act. Where victim was pastor's daughter and defendant previously taught victim in Sunday school, defendant and his wife babysat for victim and her sister on several occasions, defendant joined victim's family often for dinner, defendant helped victim and her sisters with their school work, defendant chaperoned church trip for victim, and victim's parents allowed victim to go to defendant's house by herself to ride horses, defendant assumed a position of trust through an ongoing and continuous supervisory relationship with victim. Pellman v. People, 252 P.3d 1122 (Colo. 2011).
A "position of trust" for purposes of 18-3-405.3 and subsection (3.5) of this section may be a supervisory position that exists for a "brief" period--a matter of hours or days--or it may extend over a long relationship. Defendant's discrete acts of supervision were the product of the general position of trust that defendant assumed in relation to victim. Pellman v. People, 252 P.3d 1122 (Colo. 2011).
Court did not decide whether definition of "sexual penetration" requires penetration during cunnilingus. However, court found that victim's testimony that defendant "kissed her on her vagina" was sufficient to show penetration, however slight, for purposes of sexual assault offense. People v. Morales, 2014 COA 129, 356 P.3d 972.
Any deficiency in instructions with respect to definition of sexual contact was harmless error when evidence concerning defendant's touching of victim could not reasonably be construed as being for any purpose other than sexual arousal, gratification, or abuse. People in Interest of B.D.S., 739 P.2d 902 (Colo. App. 1987).
Trial court properly refused to instruct jury concerning consent as an affirmative defense in sexual assault case. Affirmative defense not warranted where one victim testified that she did not resist or cry out when defendant assaulted her and another testified that her failure to resist or cry out was motivated by fear and that her submission was induced by fear, People v. Braley, 879 P.2d 410 (Colo. App. 1993).
Applied in People v. Osborn, 42 Colo. App. 376, 599 P.2d 937 (1979); People v. Fierro, 199 Colo. 215, 606 P.2d 1291 (1980); People v. Opson, 632 P.2d 602 (Colo. App. 1980); People v. Reynolds, 638 P.2d 43 (Colo. 1981); People v. Mack, 638 P.2d 257 (Colo. 1981); People v. Thatcher, 638 P.2d 760 (Colo. 1981); People v. Salazar, 648 P.2d 157 (Colo. App. 1981).