Sexual Assault on a Child by One in a Position of Trust (CRS 18-3-405.3)

According to Colorado Revised Statutes 18-3-405.3, a person who “knowingly subjects another not his or her spouse to any sexual contact commits sexual assault on a child by one in a position of trust if

1. the victim is a child less than eighteen years of age and
2. the actor committing the offense is one in a position of trust with respect to the victim.”

The penalties for this offense range from two years to life in prison depending on

• the child’s age and
• whether the child sustained bodily injury.

Moreover, the defendant must register as a Colorado sex offender.

To help you better understand the law, our Denver Colorado criminal defense lawyers discuss the following:

• 1. What is “sexual assault on a child by one in a position of trust”?
• 2. What does it mean to be “in a position of trust”?
• 3. What are the penalties?
  • 3.1. Basic criminal penalties
  • 3.2. Child under 15 or habitual sexual abuse
  • 3.3. Crime of violence
  • 3.4. Colorado sex offender registration
• 4. How can a person fight the charges?
• 5. How we go about proving your innocence
• 6. Related offenses
• 7. Victim resources and information

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

1. What is “sexual assault on a child by one in a position of trust”?

Although this crime is called “sexual assault,” the term is misleading. Sex assault on a child is the underage equivalent of CRS 18-3-404 Colorado’s sexual contact law.

Sexual contact (and therefore, sex assault on a minor) consists of touching or fondling the victim’s

• breast(s),
• buttocks, or
• genital area for the purpose of sexual arousal, gratification, or abuse.

These sexual acts do not involve penetration or intrusion.

By contrast, Colorado’s sexual assault law (CRS 18-3-402) comprises

• rape,
• anal rape,
• forced oral sex, or
• violation with an object – regardless of the victim’s age.

Sexual assault on a child charges apply when either:

• you touch the minor, or
• you cause the minor to touch you.

To commit the crime of sexual assault on a minor, it is not necessary that either person be naked or that harsh physical force be used. Physical contact or sexual activity through clothing is sufficient if the purpose is

• sexual arousal,
• gratification, or
• abuse.¹

Also see our article on Colorado child molestation laws.

2. What does it mean to be “in a position of trust”?

Under Colorado law, you occupy a position of trust with respect to a minor whenever you are responsible, in any way and for any amount of time, for the child’s

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

Specifically, CRS 18-3-401(3.5) states that:

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 minor, including a guardian or someone otherwise responsible for the general supervision of a minor’s welfare, or a person who is charged with any duty or responsibility for the health, education, welfare, or supervision of a minor, 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.

Examples may include the child’s:

• doctor or other health care provider,
• coach,
• psychotherapist,
• teacher,
• tutor,
• guardian,
• priest,
• rabbi,
• tutor, or
• babysitter.

Note that unlike CRS 18-3-405 – Colorado’s regular sex assault on a child law – sex assault on a minor by one in a position of trust applies to all children under 18 years of age, regardless of the difference in age between the minor and the person accused.²

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

3. What are the penalties?

3.1. Basic criminal penalties

Sex assault on a minor by one in a position of trust is usually a Colorado class 4 felony when the minor is 15, 16 or 17 years old. Under this circumstance, consequences of this type of child sexual abuse include:

• 2-6 years in prison, and/or
• A fine of $2,000-$500,000.

In addition, the defendant faces 10 years to life on Sex Offender Intensive Supervision Probation (SOISP).

Note that SOISP is very difficult to comply with. In many cases, defendants may have to live in a shared living arrangement (SLA) with other sex offenders. Often internet access is prohibited (which makes working nearly impossible). There are strict curfews, and probation officers may show up to check on the defendant with no notice (sometimes in the early morning hours). Plus defendants may need permission to date and may be prohibited from seeing their own children. And making one mistake could cause the defendant to be remanded to prison.

3.2. Child under 15 or habitual sexual abuse

Sex assault on a minor by one in a position of trust increases to a Colorado class 3 felony, however, if:

• The minor was under the age of fifteen, or
• The offense was part of a pattern of sexual abuse.

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

• 4-12 years in prison, and/or
• A fine of $3,000-$750,000.

In addition, the defendant faces 20 years to life on SOISP.

And if a pattern of abuse is alleged, there is no statute of limitations on the offense. This means that you can be charged with the crime decades after the alleged sexual exploitation occurred.³

3.3. Crime of violence

Sex assault on a minor is categorized as a Colorado violent crime if, during the commission of the offense “aggravators”:

• the defendant causes some bodily injury, or
• the defendant used threats, intimidation, or force against the victim.

Doing any of these things will result in 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.

Sexual offenses that are violent crimes also carry a maximum penalty of life in prison, regardless of the class of the felony.⁴

3.4. Colorado sex offender registration

A conviction on charges of sexually assaulting a minor will result in mandatory registration on the Colorado Bureau of Investigation’s sex offender registry.

If you fail to register as a sex offender as required, you face Colorado class 6 felony charges. Penalties for failing to register as a sex offender can include:

• 1 – 1 ½ years in jail, and/or
• A fine of $1,000-$100,000.⁵

4. How can a person fight the charges?

There are many defenses to criminal charges of sex assault on a minor by one in a position of trust. Among the most common under state law are:

• 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 the defendant or misconstrued the defendant’s innocent touching as sexual behavior.
• Law enforcement committed misconduct (such as a police officer coercing a confession).

The vast majority of criminal charges resolve through plea bargains. But should the case reach trial, the district attorney has the high burden to prove guilt beyond a reasonable doubt.

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

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. How we go about proving your innocence

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 of witnesses.

• Sometimes they just misinterpret an innocent situation.
• And sometimes they are used as a weapon between battling adults.

So although it can be upsetting, like all the best Colorado criminal defense attorneys we conduct a thorough background check of 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 of all available public documents.

As top Denver sex crimes attorney Michael Becker explains:

“People rightly try to teach their children that intimate touching is wrong. But 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.”

6. Related offenses

6.1. Sexual exploitation of a child

Sexual exploitation of a child (CRS 18-6-403) is Colorado’s child pornography crime. People who possess, produce, or distribute sexually explicit material of children under 18 for the purpose of sexual gratification face felony charges.

6.2. Internet luring of a child

Internet luring of a child (CRS 18-3-306) is electronically communicating sexual content to a child and then trying to meet the child if the child is under 15, and the person is at least four years older. This crime is a felony.

6.3. Enticement of a child

Enticement of a child (CRS 18-3-305) is inviting or luring a child under 15 into any building, room, vehicle, or secluded space to commit rape or sexual contact. This crime is a felony.

6.4. Pimping of a child

Pimping of a child (CRS 18-7-405) is knowingly living off the earnings of a child prostitute. This offense is a felony.

6.5. Public indecency

Public indecency (CRS 18-7-301) is when a person exposes his/her genitals or intimate body parts or has sex in public. Public indecency is a petty offense.

7. Victim resources and information

• 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
• Child Abuse Prevention – Colorado Department of Education
• Abused Children’s Fund
• Child Maltreatment – WHO

For further assistance…

Our law firm represents clients accused of sex crimes in Denver, Greeley, Colorado Springs, Aurora, Fort Collins, Boulder, Lakewood, Douglas County, Arapahoe, Jefferson County, Larimer County, Thornton, Pueblo, Arvada, Brighton, Commerce City, Westminster, Centennial and elsewhere throughout Colorado. In addition, our Denver sexual assault attorneys defend against all types of charges including DUI, child abuse, domestic violence, assault (first degree, second degree, and third-degree), criminal solicitation, sex trafficking, drug crimes, and theft crimes. We also practice personal injury.