Sexual Assault on a Child by One in a Position of Trust (C.R.S. § 18-3-405.3)

Colorado Revised Statute § 18-3-405.3 C.R.S prohibits sexual assault on a child by one in a position of trust. This crime occurs when you engage in sexual contact with a child under 18 whom you have supervision over. Examples include:

• A priest groping a choir boy outside his underwear
• A pediatrician caressing a patient’s backside
• A middle school teacher fondling a student’s breast
• A babysitter tickling the child over the crotch of their underwear

Note that this law applies even when the child is 17, which is Colorado’s age of consent. Sexual contact with a 17-year-old is still unlawful because of the power imbalance between the child and “trustee.”

In Colorado, sexual assault on a child by one in a position of trust is always a felony carrying fines, prison, and Sex Offender Intensive Supervision Probation. The penalties are harsher if the child is under 15 or there is a pattern of abuse.

In this article, our Denver criminal defense lawyers will address the following key topics regarding sexual assault on a child by one in a position of trust in Colorado law:

• 1. Elements of C.R.S. 18-3-405.3
• 2. “In a Position of Trust”
• 3. Penalties
• 4. Defenses
• 5. Evidence
• Frequently Asked Questions
• Additional Resources

1. Elements of C.R.S. 18-3-405.3

For you to be convicted of sexual assault on a child by one in a position of trust, Colorado prosecutors must prove beyond a reasonable doubt the following three elements:

1. You had authority (“in a position of trust”) over a child under 18; and
2. You touched or fondled the child’s breasts, buttocks, or genital area, or you had the child touch yours; and
3. Your purpose was sexual arousal, gratification, or abuse.

It is not necessary that anyone be naked or that harsh physical force be used. Physical contact or sexual activity through clothing is sufficient.

In short, C.R.S. 18-3-405.3 prohibits exploiting your authority over a child to molest them – or have them fondle you – for sexual purposes.

Note that in most other areas of Colorado law, the term “sexual assault” normally indicates penetrative sex such as sexual intercourse, oral sex, or anal sex. Though under CRS 18-3-405.3, “sexual assault” means non-penetrative groping. In that sense, “sexual assault on a child by one in a position of trust” is the underage equivalent of the Colorado crime of unlawful sexual contact (C.R.S. 18-3-404).¹

C.R.S. 18-3-405.3 prohibits sexual touching of a child by a teacher, babysitter, or other person of trust.

2. “In a Position of Trust”

Under Colorado law, you occupy a position of trust concerning a minor whenever you are responsible (in any way and for any amount of time) for the child’s:

• health,
• education,
• welfare, or
• supervision.

Some of the people considered to be in a position of trust include:

• doctors or other health care providers,
• coaches,
• psychotherapists,
• teachers,
• tutors,
• guardians,
• priests, or
• babysitters.

Note that, unlike C.R.S. 18-3-405 – Colorado’s regular sex assault on a child law – sexual assault on a child by one in a position of trust applies to all children under 18 years of age. The age difference between the minor and the “trustee” does not matter.²

3. Penalties

Basic Criminal Penalties

In Colorado, sexual assault on a child by one in a position of trust is usually a class 4 felony when the minor is 15, 16 or 17 years old. The sentence is:

• 2 to 6 years in prison and/or
• $2,000 to $500,000.

In addition, you face 10 years to life on Sex Offender Intensive Supervision Probation (SOISP).

Child Under 15 or Habitual Sexual Abuse

In Colorado, sexual assault on a child by one in a position of trust increases to a class 3 felony if:

• The minor was under 15, or
• The offense was part of a pattern of sexual abuse.

In either of these cases, the penalties for sex assault on a child by one in a position of trust can include:

• 4 to 12 years in prison and/or
• $3,000 to $750,000.

In addition, you face 20 years to life on SOISP. Plus, if a pattern of abuse is alleged, there is no statute of limitations for prosecutors to bring charges.³

“Crime of Violence”

Sexual assault on a child by one in a position of trust becomes a crime of violence in Colorado if either of these “aggravators” applies:

• You caused some bodily injury, or
• You use threats, intimidation, or force against the victim.

As a crime of violence, violating C.R.S. 18-3-405.3 carries an enhanced “mandatory minimum” sentence of:

• 5 years if the minor was 15, 16 or 17, or
• 10 years if the minor was under 15 or there was a pattern of abuse.

Meanwhile, the maximum penalty for this crime of violence is life in prison.⁴

Colorado Sex Offender Registration

In addition to carrying prison and fines, a conviction of sexual assault of a child by one in a position of trust requires you to register as a sex offender for life, often with quarterly (90-day) reporting requirements. A first-time offense of failing to register as a sex offender is a class 6 felony, carrying

• 1 to 1 ½ years in jail and/or
• $1,000 to $100,000.⁵

Sex assault by a person in a position of trust on a young child, adolescent, or older child under 18 is a felony.

4. Defenses

Here at Colorado Legal Defense Group, we have represented literally thousands of people facing sex crime allegations and have a long track record of getting these cases reduced or dismissed.

In our experience, the best defenses to criminal charges of sexual assault by one in a position of trust are to show that either:

• The touching was accidental;
• You did not touch the minor;
• The minor did not touch you;
• The touching did not involve an intimate part;
• The touching was not for the purpose of sexual arousal or gratification;
• You did not occupy a position of trust with respect to the minor;
• The “victim of child sex abuse” falsely accused you or misconstrued your innocent touching as sexual behavior; and/or
• Law enforcement engaged in misconduct (such as a police officer coercing a confession).

The vast majority of criminal charges are resolved through plea bargains. Should the case reach trial, the district attorney has the high burden of proving guilt beyond a reasonable doubt.

Remember, it is not a defense to C.R.S. 18-3-405.3 charges that the child was 17 (Colorado’s age of consent). Sexual contact between people in a position of trust and the minors in their care is always unlawful.

Child sex abuse victims/survivors may display such behaviors as eating disorders, low self-esteem, self-harm, substance abuse, withdrawal from family members, bedwetting, or other health problems.

5. Evidence

Our Colorado sex crimes lawyers know that innocent people are often accused of unlawful sexual contact with a minor. Usually, it is the child’s word against yours – and children are not the most reliable witnesses.

Sometimes, children just misinterpret an innocent situation. Other times, children are used as weapons in battles between adults.

In every case, we conduct thorough background checks on the accuser and potential witnesses. We do this by:

• Subpoenaing their school, counseling, and medical records;
• Checking their email records and social networking accounts;
• Conducting interviews of friends, family, schoolmates and social media contacts; and
• Running background checks on all available public documents.

As our top Denver sex crimes attorney Michael Becker explains:

“People rightly try to teach their children that intimate touching is wrong. However, children are impressionable. Sometimes they mistake affection and concern with sex offenses. Also sometimes they are persuaded to lie. The earlier we come on board, the easier it is for us to uncover improper motives and preserve our client’s good name.”

Frequently Asked Questions

Can a 17-year-old legally consent to sexual contact with a teacher, coach, or other “trustee”?

No. Even though Colorado’s general age of consent is 17, a minor under 18 cannot legally consent to sexual contact with a person in a position of trust over them.

Does “sexual assault” under C.R.S. 18-3-405.3 require intercourse or penetration?

No. This charge is based on sexual contact (groping/fondling of intimate parts) and can include touching over clothing.

Who counts as “in a position of trust”?

It includes anyone responsible for a child’s health, education, welfare, or supervision—even briefly. Common examples in Colorado include teachers, coaches, doctors, counselors/therapists, clergy, guardians, and babysitters.

What if the touching was accidental or not for sexual gratification?

Accidental contact or contact without sexual intent is not what C.R.S. 18-3-405.3 targets. A common defense is showing the contact was non-sexual, mistaken, or never happened.

Is sexual assault on a child by one in a position of trust always a felony in Colorado?

Yes. It is charged as a felony, and penalties increase when the child is under 15 or when the prosecution alleges a pattern of sexual abuse.

Additional Resources

If you are a survivor in need of help, refer to the following for help:

• National Sexual Assault Telephone Hotline – RAINN
• Adult Survivors of Child Sexual Abuse – RAINN
• Sexual Assault and Mental Health – Mental Health America
• Post Traumatic Stress Disorder (PTSD) – National Institute of Mental Health
• Child Sexual Abuse Statistics – VictimsOfCrime.org
• National Sexual Violence Resource Center
• Abused Children’s Fund
• Child Maltreatment – WHO