Colorado Law re “Sexual Assault of a Client by a Psychotherapist” (18-3-405.5 CRS)

In Colorado, mental health professionals are prohibited from having any sort of sexual contact with their clients – even if it is consensual.

Mental health professionals who violate this prohibition can be charged with sexual assault of a client by a psychotherapist under Colorado Revised Statutes section 18-3-405.5 C.R.S.

Sexual assault of a client by a psychotherapist can be a difficult charge to defend. This is because 18-3-405.5 C.R.S. is a strict liability crime, meaning consent is not a defense.

In addition to various sexual acts, behavior prohibited by 18-3-405.5 includes touching a patient’s genitals, buttocks or (female) breasts, or allowing a patient to touch yours.

Groping or fondling a client (or letting a client grope or fondle you) is a misdemeanor, punishable by up to 364 days in jail.

More serious sexual activity — such as intercourse, anal intercourse, oral sex, or penetration with the fingers or an object – can lead to charges of aggravated sexual assault on a client by a psychotherapist.

Aggravated sexual assault is a felony. If you are convicted, you will a serve mandatory sentence to Colorado State Prison. You will also lose your professional license and be subject to mandatory registration as a Colorado sex offender.

And if the sexual activity was not consensual, you might also be charged with additional sex offenses such as:

To help you better understand Colorado’s law against sexual assault on a client by a psychotherapist, our Denver Colorado criminal defense lawyers discuss the following, below:

1. Purpose of Colorado’s law against sex with clients

18–3–405.5 C.R.S. exists to protect people receiving mental health treatment from being sexually exploited by the treating psychotherapist. As the Supreme Court of Colorado noted:

“[B]ecause of the existence of a distinctive dependency relationship with the offender or other special circumstances inherent in the relationship, [clients of psychotherapists] are uncommonly susceptible to sexual exploitation.”

Thus for purposes of this law, consent to a sexual relationship is not a defense, even if the client is not mentally ill.

2. Definitions

2.1. Sexual penetration

18-3-401 (6), C.R.S. defines “sexual penetration” as sexual intercourse, cunnilingus, fellatio, analingus, or anal intercourse. Any penetration, however slight, is sufficient. Emission or ejaculation does not need not be proved as an element of sexual penetration.

2.2. Sexual intrusion

18-3-401 (5), C.R.S. provides:

“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.”

2.3. Sexual contact

Sexual contact occurs when:

You knowingly touch someone’s intimate parts without their consent,
You knowingly cause someone to touch your intimate parts without their consent, or
You entice a child to expose his or her intimate parts or to have sex with another person for your sexual gratification.¹

2.4. Aggravated sexual assault

Colorado 18-3-405.5 (1) (a), C.R.S. defines aggravated sexual assault on a client by a psychotherapist as follows:

Any actor who knowingly inflicts sexual penetration or sexual intrusion on a victim commits aggravated sexual assault on a client if:

(I) The actor is a psychotherapist and the victim is a client of the psychotherapist; or
(II) The actor is a psychotherapist and the victim is a client and the sexual penetration or intrusion occurred by means of therapeutic deception.

2.5. Sexual assault

For purposes of Colorado 18-3-405.5 C.R.S., “sexual assault” does not have its usual definition. Rather, it is defined as sexual contact between a therapist and client.

Specifically, under Colorado 18-3-405.5 C.R.S (2) provides:

Any actor who knowingly subjects a victim to any sexual contact commits sexual assault on a client if:

(I) The actor is a psychotherapist and the victim is a client of the psychotherapist; or
(II) The actor is a psychotherapist and the victim is a client and the sexual contact occurred by means of therapeutic deception.

2.6. Client

Under 18-3-405.5 C.R.S, “client” means a person who seeks or receives psychotherapy from a psychotherapist.

2.7. Psychotherapist

For purposes of 18-3-405.5 C.R.S, “psychotherapist” means any person who performs or purports to perform psychotherapy, whether the person is licensed or registered by the state pursuant to title 12, C.R.S., or certified by the state pursuant to part 5 of article 1 of title 25, C.R.S.

Psychotherapists can include (without limitation):

psychiatrists,
psychologists,
marriage counselors, and
alcohol and drug counselors.

2.8. Psychotherapy

Under 18-3-405.5 C.R.S., “psychotherapy” means the treatment, diagnosis, or counseling in a professional relationship to assist individuals or groups to alleviate mental disorders, understand unconscious or conscious motivation, resolve emotional, relationship, or attitudinal conflicts, or modify behaviors which interfere with effective emotional, social, or intellectual functioning.

2.9. Knowingly

A psychotherapist acts “knowingly” under 18-3-405.5 C.R.S when:

The psychotherapist is aware that he is having sex or sexual contact with a person who seeks, or is receiving psychotherapy, from him or her, or
The psychotherapist is aware that his or her conduct is practically certain to cause submission of the client to an act of sexual penetration. ²

2.10. Therapeutic deception

18-3-405.5 (4)(d) C.R.S. defines “therapeutic deception” as a representation by a psychotherapist that sexual contact, penetration, or intrusion by the psychotherapist is consistent with or part of the client’s treatment.

3. Consequences of a conviction for Colorado sexual assault by a psychotherapist

3.1. Criminal penalties

Sexual assault of a client by a psychotherapist is a Colorado class 1 misdemeanor. Criminal penalties can include:

364 days in jail, and/or
A fine of $1,000.

Depending on the circumstances, aggravated sexual assault on a client by a psychotherapist is a Colorado class 4 felony. Consequences can include:

A minimum of 2 years in prison (mandatory), with the possibility of an indeterminate (up to life) sentence, and/or
A fine of $2,000-$500,000.

3.2. Sex offender registration and loss of rights

In addition to criminal penalties, a conviction for sexual assault on a client by a psychotherapist will require you to register as a Colorado sex offender.

You are also likely to lose your professional license and be subject to disciplinary action by the Colorado state board of registered psychotherapists, especially if you are convicted of aggravated sexual assault.³

Other rights you may lose include, but are not limited to:

Parental rights and responsibilities for any child conceived as a result of the assault;
Rights of inheritance from a child conceived as a result of the assault; and
The right to be notified of, or object to, the adoption of any such child.

4. Defenses to charges of sexual assault on a client

Defending charges of sexual assault on a client by a psychotherapist can be challenging due to its nature as a strict liability crime.

In addition, when charged with this offense, you may not invoke the client-psychotherapist privilege in order to keep your interactions with the patient private.

Common defenses to charges of raping or sexually assaulting a client include (but are not limited to):

No sex or sexual contact or act took place,
The sexual contact was accidental,
The alleged victim was not a client at the time of the offense,
There was police or prosecutorial misconduct, or
You honestly didn’t know the person you were having sex with was a client (say because you had an anonymous hook-up at a costume party or fetish ball).

Remember — the burden is not on you to prove that the alleged acts did not happen. Rather, it is the prosecution’s burden to prove beyond a reasonable doubt that such contact occurred.

See our related article about the statute of limitations for sexual assault in Colorado.

Call us for help…

Being accused of violating a client’s trust is a scary thing. You face not only the possibility of criminal penalties, but the loss of your license and the trust of your family, friends and community, as well as designation as a sex offender.

The sex crimes attorneys at the Colorado Legal Defense Group understand just how trying such charges can be.

But we’re here to help. Communities we serve include Denver, Colorado Springs, Aurora, Fort Collins, Lakewood, Thornton, Arvada, Westminster, Centennial and Boulder.

Colorado Legal Defense Group
4047 Tejon Street
Denver, CO 80211
(303) 222-0330

Legal references:

18-3-401 (4) C.R.S. Prior to March 1, 2022, class 1 misdemeanors carried up to 18 months in jail and/or $5,000 in fines. SB21-271.
Ferguson v. People (1992) 824 P.2d 803.
See 12-43-222 (1), C.R.S.

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