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    Rape & Sexual Assault Laws in Colorado (CRS § 18-3-402)

    Falsely accused of rape in Colorado? Top 4 defenses (CRS 18-3-402)

    § CRS 18-3-402 is the Colorado statute that defines the crime of sexual assault (rape) as any forced or non-consensual act of sexual penetration. Sex is automatically deemed to be non-consensual if one party is intoxicated or unconscious.

    The law says that “any actor who knowingly inflicts sexual intrusion or sexual penetration on a victim commits sexual assault.” The sex act must be penetrative – such as vaginal, oral, or anal sex.

    Examples of rape

    1. A vagrant abducting a pedestrian and forcing fellatio on her,
    2. A guy at a frat party fingering a drunk girl, or
    3. A bellhop having intercourse with a passed out hotel guest

    Penalties

    As a felony, rape carries from 2 years to life in Colorado State Prison. It also requires lifetime sex offender registration.

    Defenses

    Potential arguments that criminal defense lawyers use to fight sexual assault charges include:

    • No sexual penetration or intrusion occurred,
    • The victim consented, or
    • The victim made false rape accusations

    Below our Denver Colorado criminal defense attorneys discuss:

    See our related articles on invasion of privacy for sexual gratification (CRS 18-3-405.6), sexual exploitation of a child (CRS 18-6-403), and sexual assault on a child by one in a position of trust (CRS 18-3-405.3).

    man's hand holding down a woman's hand on bed as an example of sexual assault per Colorado 18-3-402 CRS

    CRS 18-3-402 prohibits nonconsensual sex in Colorado.

    1. What constitutes sexual assault in Colorado?

    Rape is a knowing act of unwanted sexual penetration. Specifically, sex becomes rape if either:

    1. It is against the victim’s will,
    2. The victim is inebriated, high, or otherwise mentally debilitated, or
    3. The victim is physically helpless (such as being asleep)

    Sexual assault also comprises these less common scenarios:

    1. The victim consents wrongly believing the other person is his/her spouse,
    2. A victim is in custody or a hospital. And a person with authority coerces him/her, or
    3. It is committed by a purported medical provider. And there is no legitimate medical purpose1

    Sex acts that qualify as sexual penetration or intrusion under Colorado law include:

    • Vaginal intercourse
    • Oral copulation (fellatio or cunnilingus)
    • Anal sex
    • Anilingus
    • Fingering
    • Penetration with a foreign object

    Therefore, CRS 18-3-402 does not include groping intimate parts. Non-consensual touching of breasts or buttocks would instead be charged as unlawful sexual contact (CRS 18-3-404).

    For a related discussion, see our article on rape vs sexual assault.

    1.1. Age of consent

    The age of consent in Colorado is 17 years old. But there are two close-in-age exceptions. Children under 17 may consent to sex if:

    • The child is less than 15. And the other person is less than 4 years older, or
    • The child is 15 or 16. And the other person is less than 10 years older

    Otherwise, sex with children under 17 is statutory rape. It is irrelevant if the child wanted to engage in sexual activity. It is also irrelevant if the child lied about being 17.2

    2. What are the penalties under CRS 18-3-402?

    Sexual assault is generally a felony under Colorado state law. A violation of sexual assault laws is also an extraordinary risk crime. So the maximum sentence is extra harsh.

    Also see our related sex crimes articles on date rape and spousal rape.

    2.1. Sexual assault without force

    Rape is a class 4 felony when:

    • There was no use of force by the defendant, and
    • The victim is not injured

    The sentence is:

    • 2 – 8 years in prison, and/or
    • $2,000 – $500,000 in fines

    The defendant also has to register as a sex offender.

    2.2. Sex assault by force or drugging

    Rape is a class 3 felony when the sex was accomplished by way of:

    • The use of physical force or violence,
    • The threat of physical force or violence,
    • Drugging of the victim without consent,
    • A believable threat of imminent death, serious bodily injury, extreme pain, or kidnapping, or
    • A believable threat of future retaliation against the victim or any other person

    The sentence is:

    • 4 – 16 years in prison, and/or
    • $3,000 – $750,000 in fines

    The defendant also has to register as a sex offender.

    2.3. Gang rape / serious injury / use of a deadly weapon

    Rape is a class 2 felony when:

    • The rapist is physically aided or abetted by one or more other persons,
    • The rapist is armed with a deadly weapon,
    • The rapist appears to be armed with a deadly weapon, or
    • The victim suffers serious bodily injury

    Serious bodily injury comprises injuries that carry either:

    • A substantial risk of death,
    • A substantial risk of serious permanent disfigurement,
    • A substantial risk of protracted loss or impairment of the function of any part or organ of the body, or
    • Breaks, fractures, or burns of the second or third degree

    The rape penalty turns on whether the defendant used a deadly weapon. If there is no weapon, the sentence is:

    • 8 – 24 years in prison, and/or
    • $5,000 – $1,000,000 in fines

    The defendant also has to register as a sex offender.

    If there is a weapon, sex assault becomes a crime of violence. It carries the following enhanced sentence:

    • 16 years – life in prison, and/or
    • $5,000 – $1,000,000 in fines

    The defendant also has to register as a sex offender.3

    2.4. Statutory rape laws

    Colorado statutory rape carries 6 months to 8 years behind bars depending on the ages of the people involved. See our article statutory sexual assault for more information on this sexual offense. People face statutory rape charges even if the only sexual conduct was consensual sex.

    3. Is sex offender registration required?

    In most cases, a Colorado rape conviction requires lifetime sex offender registration. The following information about offenders is publicly searchable through the Colorado Bureau of Investigation (CBI).

    • Name, address, and date of birth,
    • Physical description,
    • Specific crime(s) and date(s) of conviction,
    • Predatory habits (modus operandi), if known, and
    • Whether the defendant is considered a “sexually violent predator” (SVP).

    Convicted sex offenders are labeled sexually violent predators if:

    • They were 18 years of age or older at the time of the offense. Or they were tried as an adult, and
    • Your victim was a stranger. Or they established a relationship for the sole purpose of sexual victimization, and
    • The CBI’s risk screening assessment indicates they are likely to commit a subsequent sex offense.4

    Failure to register as a sex offender (CRS 18-3-412.5 – .6) is a separate class 6 felony. Penalties include:

    • 1 – 1 ½ years in prison, and/or
    • $1,000 – $100,000 in fines5
    Sex offender community notification warning

    Convicted rapists must register as Colorado sex offenders.

    4. Are there other consequences?

    A rape conviction has many non-criminal penalties as well.

    Firstly, it shows up on background checks forever. Future employers and landlords will see it. So otherwise qualified candidates may get passed over for jobs and housing.

    Secondly, convicted felons lose their gun rights. And the only way to reclaim firearm rights is through a Governor’s Pardon. This is very hard to get.

    Finally, rape is a deportable offense. So if the defendant is not a citizen, the state will fight to remove him/her from the U.S. Learn more about the criminal defense of immigrants.

    5. What are the defenses?

    The best way to fight rape charges turns on the facts of the case. Five common defenses to these criminal charges include showing the district attorney that:

    1. No sexual penetration or intrusion took place.
    2. The sex was consensual.
    3. The defendant is the victim of mistaken identity.
    4. The defendant was falsely accused.
    5. The victim regretted the sex and later claimed it was rape.

    Many rape cases fall into “grey areas.” Maybe there was a miscommunication. And the defendant honestly believed the other person consented:

    Example: Kim and Jordan are making out in his dorm room. Kim tells Jordan to “do it already.” Kim means for Jordan to give her oral sex. But Jordan takes it as a green light to have intercourse. Kim protests when Jordan penetrates her, and Jordan immediately stops. But Kim calls the police claiming she has been raped.

    Here, Jordan genuinely thought Kim consented. So under the law, he committed no crime. But law enforcement may not believe Jordan and arrest him anyway.

    Sometimes defendants claim they were too drunk to realize the victim did not – or could not – consent. But courts are clear that voluntary intoxication – getting drunk or stoned on purpose – is never a defense to rape charges. (Colorado courts have not ruled whether involuntary intoxication could be a defense to rape charges.)6

    In every criminal case, the D.A. has the burden to prove guilt beyond a reasonable doubt. This is a very high bar. And in most sexual assault cases, there are no eyewitnesses, video recordings, or rape kits. Oftentimes, the only evidence is dueling testimonies. Therefore, the state may have a difficult time getting a conviction for lack of proof. So prosecutors may agree to dismiss the case or reduce it to a misdemeanor.

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

    6. Can rape victims sue the perpetrator?

    Yes. Sexual violence victims can pursue not only criminal justice by filing a police report. They can also seek civil remedies by bringing a lawsuit.

    Three common causes of action rape victims sue for include:

    • Assault,
    • False imprisonment, and
    • Intentional infliction of emotional distress

    Most lawsuits settle out of court. But if the case proceeds to trial, the victim can seek compensatory damages. This is meant to reimburse the victim for any:

    The court may also award the victim punitive damages. This is meant to punish the rapist for his/her conduct. Depending on the case, punitive damages can amount to far more than compensatory damages.

    Note that civil judges cannot order any jail time. Only criminal judges have that authority.

    Also note that civil cases are easier to win than criminal cases. In a civil lawsuit, the plaintiff (victim) has to show only by a preponderance of the evidence that the defendant (accused) is liable. Therefore, it is possible for an alleged rapist to be acquitted in criminal court but found liable in civil court.

    7. Are sexual assault cases public record in Colorado?

    In Colorado, sexual assault cases are generally considered public record. This means you can generally find the complaint and related motions on the relevant court website. However, prosecutors typically protect the victim’s identity by redacting their names in publicly accessible documents.7

    8. Resources for victims of sexual assault

    You can report rape by 1) a police report, 2) a medical report, or 3) an anonymous report. Learn more in the State of Colorado Division of Criminal Justice’s handbook Sexual Assault Reporting Options: Guidelines for Response.

    The Colorado Coalition Against Sexual Assault (CCASA) is a statewide organization that offers support and advocacy for rape victims. You can reach them at 303-839-9999. Links to specific resources are:

    Financial resources for rape victims:

    Crisis organizations and information for survivors (Colorado):

    Crisis organizations and information for survivors (National):

    Legal references:

    1. Colorado Revised Statute 18-3-402; see Dunton v. People, (Colo. 1995) 898 P.2d 571. See also People v. Lozano-Ruiz, (2018) CO 86, 429 P.3d 577. HB22-1169; People v. Lancaster, (2022) 2022 COA 82.
    2. CRS 18-3-402.
    3. Same; CRS 18-1-901(p); see Cortez v. People, (1964) 155 Colo. 317, 394 P.2d 346. See also People v. Martinez, (Colo. App. 2020) COA 141, 486 P.3d 412.
    4. CRS 18-3-414.5.
    5. CRS 18-3-412.5 – .6.
    6. See People v. Roark, (Colo. 1982) 643 P.2d 756.
    7. CRS 24-72-304.

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