Colorado Revised Statute 18-3-405 C.R.S. prohibits sexual assault on a child. This occurs when you fondle a child under 15 (or you cause the child to fondle you), and you are at least four years older than the child.
Penalties for sexual assault on a child range from two years to life in Colorado State Prison depending on the facts of the case. You also have to register as a sex offender for life.
The title of this offense, “sexual assault on a child,” is somewhat misleading because it does not require any sexual penetration or intrusion. It is enough to commit sexual groping (formally called unlawful sexual contact).
If sexual penetration or intrusion does occur with a child under 15, you could instead be charged with sexual assault (C.R.S. 18-3-402), which may carry harsher penalties.
In this article, our Denver criminal defense attorneys discuss the following topics regarding sexual assault on a child in Colorado law.
- 1. Elements of C.R.S. 18-3-405
- 2. Penalties
- 3. Defenses
- 4. Frequently Asked Questions
- Additional Resources
1. Elements of C.R.S. 18-3-405
For you to be convicted of sexual assault on a child in Colorado, prosecutors have the burden to prove beyond a reasonable doubt the following two elements:
- You had sexual contact with a child under age 15 (or you caused the child to have sexual contact with you), and
- You are at least four years older than the child.
Sexual contact is the formal term for sexual fondling. Specifically, sexual contact is the touching of breast(s), buttocks, or genital area for the purpose of sexual arousal, gratification, or abuse.
It is not necessary that your or the child’s intimate parts be naked. Touching a child through clothing is enough if the purpose of the touching is sexual arousal, gratification, or abuse.
Sexual assault on a child also does not need to involve sexual intercourse, sexual activity by physical force, physical injuries, or non-sexual child maltreatment.1
Under C.R.S. 18-3-405, a sexual act on a child is a felony in Colorado, not a misdemeanor.
2. Penalties
Sexual assault on a child is normally a class 4 felony in Colorado. The punishment includes:
- 2 to 6 years in prison and/or $2,000 to $500,000 plus
- sex offender registration.
However, if you facilitated the sexual contact by either:
- using force; or
- threatening imminent or future death, serious bodily injury, extreme pain, or kidnapping against the victim or another person, and the victim believed you have the present to execute the threat; or
- engaging in a pattern of sexual abuse,
then sexual assault on a child becomes a class 3 felony in Colorado. This carries:
- 4 to 12 years in prison and/or $3,000 to $750,000 plus
- sex offender registration.
Finally, sexual assault on a child becomes a crime of violence (COV) in Colorado if you:
- used, possessed, or threatened the use of a deadly weapon or
- caused serious bodily injury or death to any other person (other than an accomplice).
As a COV, sexual assault on a child carries a Colorado State Prison term of eight years to life (an “indeterminate sentence”) plus sex offender registration.2
Failure to Register as a Sex Offender
As discussed above, if you are convicted of sexual assault of a child under C.R.S. 18-3-405, you will be required to register as a sex offender with the Colorado Bureau of Investigation’s sex offender registry. For child sex offenses, this registration requirement is typically for life.
Failure to register as a sex offender for the first time is a class 6 felony, carrying one year to 18 months in prison and/or $1,000 to $100,000. A subsequent conviction is a class 5 felony, carrying one to three years in prison and/or $1,000 to $100,000.3
3. Defenses
Here at Colorado Legal Defense Group, we have defended countless people accused of sex offenses, including sexual assault on a child. In our experience, the most common defense is that no contact occurred.
Often, it is the child’s word against yours. We would therefore:
- Subpoena the accuser’s social networking accounts, email records, and school, counseling, and medical records;
- Interview the child’s friends, family, schoolmates and social media contacts; and
- Run a thorough background check on the accuser and any alleged witnesses.
If the child – or an adult in their life — has an ulterior motive for accusing you, we will uncover it. As our Denver sex crimes attorney Michael Becker explains:
“Innocent people are often wrongfully accused of sexually assaulting a child. Sometimes this happens because parents have frightened their children into believing any touching is wrong and makes them a victim of child sexual abuse. Though it can also occur when people use an impressionable child as a weapon in a personal vendetta. This is why retaining an experienced Colorado sex crimes lawyer as soon as possible is a must in the vast majority of cases.”
Three other defenses that may get C.R.S. 18-3-405 charges reduced or dismissed are to argue that:
- The touching was not of an intimate part, or
- The touching was accidental, or
- The touching was not for the purpose of arousal or gratification – for instance, you were checking for an injury or trying to tag the child “out” during a game of touch football.
Note that it is not a defense that the child initiated the sexual contact or consented to it. Children under 15 cannot lawfully consent to sexual contact with people who are four or more years older than them.
Sexual violence can result in mental health problems for abuse victims, including low self-esteem, self-harm, substance abuse issues, and post-traumatic stress disorder.
See our related Colorado articles on domestic violence, child pornography, child molestation, statute of limitations for sexual assault, and sentencing sex offenders.
Legal References:
- C.R.S. 18-3-405 – Sexual Assault on a Child.
(1) Any actor who knowingly subjects another not his or her spouse to any sexual contact commits sexual assault on a child if the victim is less than fifteen years of age and the actor is at least four years older than the victim.
(2) Sexual assault on a child is a class 4 felony, but it is a class 3 felony if:
(a) The actor applies force against the victim in order to accomplish or facilitate sexual contact; or
(b) The actor, in order to accomplish or facilitate sexual contact, threatens imminent death, serious bodily injury, extreme pain, or kidnapping against the victim or another person, and the victim believes that the actor has the present ability to execute the threat; or
(c) The actor, in order to accomplish or facilitate sexual contact, threatens retaliation by causing in the future the death or serious bodily injury, extreme pain, or kidnapping against the victim or another person, and the victim believes that the actor will execute the threat; or
(d) The actor commits the offense as a part of a pattern of sexual abuse as described in subsection (1) of this section. No specific date or time must be alleged for the pattern of sexual abuse; except that the acts constituting the pattern of sexual abuse, whether charged in the information or indictment or committed prior to or at any time after the offense charged in the information or indictment, shall be subject to the provisions of section 16-5-401 (1)(a), concerning sex offenses against children. The offense charged in the information or indictment shall constitute one of the incidents of sexual contact involving a child necessary to form a pattern of sexual abuse as defined in section 18-3-401 (2.5). Prosecution for any incident of sexual contact constituting the offense or any incident of sexual contact constituting the pattern of sexual abuse may be commenced and charged in an information or indictment in a county where at least one of the incidents occurred or in a county where an act in furtherance of the offense was committed.
(3) If a defendant is convicted of the class 3 felony of sexual assault on a child pursuant to paragraphs (a) to (d) of subsection (2) of this section, the court shall sentence the defendant in accordance with the provisions of section 18-1.3-406.
(4) A person who is convicted on or after July 1, 2013, of sexual assault on a child under this section, upon conviction, shall be advised by the court that the person has no right:
(a) To notification of the termination of parental rights and no standing to object to the termination of parental rights for a child conceived as a result of the commission of that offense;
(b) To allocation of parental responsibilities, including parenting time and decision-making responsibilities for a child conceived as a result of the commission of that offense;
(c) Of inheritance from a child conceived as a result of the commission of that offense; and
(d) To notification of or the right to object to the adoption of a child conceived as a result of the commission of that offense.C.R.S. 18-3-401 – Definitions.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. - Same.
- C.R.S. 18-3-412.5.