Sexual Assault – Colorado Laws, Penalties & Best Defenses

In CRS 18-3-402, Colorado law defines the felony 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 unconscious or too intoxicated to give consent.

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

The following chart illustrates the sentencing ranges for sexual assault convictions. Since rape is an extraordinary risk crime, the maximum punishment is extra harsh.

A conviction also requires lifetime sex offender registration.

Note that statutory rape (consensual sex with a minor under 17) carries 6 months to 8 years behind bars depending on the ages of the people involved.³

In this article our Denver Colorado criminal defense attorneys answer the following faqs re. sexual assault laws.

• 1. What is sexual assault?
• 2. Can I get probation?
• 3. Is sex offender registration required?
• 4. Non-criminal Consequences
• 5. What are the defenses?
• 6. Can rape victims sue?
• 7. Are sexual assault cases public record in Colorado?
• Resources for Victims of Sexual Assault

Also listen to our informative podcast:

1. What is sexual assault?

Rape is a knowing act of unwanted sexual penetration. For you to be convicted in Colorado, prosecutors have to prove beyond a reasonable doubt the following two elements of the crime:

1. You had sexual penetration or intrusion with the victim, such as:
   • Vaginal intercourse,
   • Oral copulation (fellatio or cunnilingus),
   • Anal sex,
   • Anilingus,
   • Fingering, or
   • Penetration with a foreign object; and
2. The sex was non-consensual because either:
   • The victim said or indicated no,
   • the victim was inebriated, high, or otherwise mentally debilitated, or
   • The victim was physically helpless, such as being asleep, passed out, or in a coma.¹

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).

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 you are less than 4 years older, or
• The child is 15 or 16, and you are less than 10 years older

Otherwise, sex with children under 17 is the crime of statutory rape.²

2. Can I get probation?

It is possible to get probation in lieu of prison for a sexual assault offense. However, considering the severity of the offense, it is unusual.

A more common scenario is that a judge grants you probation instead of part of your sentence. Then, while on probation, you must abide by various terms and conditions. Common ones include:

• drug and alcohol testing,
• counseling,
• check-ins with your probation officer,
• ankle monitoring, and
• staying away from the victim.³

3. Is sex offender registration required?

In most cases, a Colorado rape conviction requires lifetime sex offender registration. This means you are searchable on the  Colorado Bureau of Investigation (CBI) database.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 Colorado State Prison, and/or
• $1,000 – $100,000 in fines⁵

4. Non-criminal Consequences

A rape conviction shows up on your background check forever, so future employers may disqualify you.

As a convicted felon, you also lose your gun rights. The only way to reclaim firearm rights is through a Governor’s Pardon.

Finally, rape is a deportable offense. So if you are not a citizen, the state will fight to remove you from the U.S.

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

5. What are the defenses?

Here at Colorado Legal Defense Group, we have represented literally thousands of people charged with sex crimes, including rape. In our experience, the following three defenses have proven very effective with prosecutors, judges, and juries.

You Were Falsely Accused

Judges and D.A.s realize that some of the people accused of rape are innocent and that their accuser is acting out of anger, revenge, a misunderstanding, peer pressure, or regret. To show that your accuser is lying, we compile such evidence as:

• text messages, emails, or voicemails from the accuser that indicate a motive to lie about getting assaulted;
• witnesses who may have overheard the accuser admitting to making up the allegations; or
• testimony from an expert medical witness who believes the accuser’s injuries were self-inflicted.

The Sex Was Consensual

Consent would be a full defense to sexual assault charges, even if the accuser regretted the sex afterward. We rely on the following “circumstantial evidence” to show that the accuser case consented to sex:

• recorded communications from the accuser following the alleged assault that indicate they consented;
• eyewitnesses who saw the accuser near the time of the alleged assault and who can attest to them being sober and conscious; or
• testimony from an expert medical witness who believes the accuser was not a victim of assault.

Many rape cases fall into “grey areas.” Maybe there was a miscommunication, and you honestly believed your partner consented. Here is a scenario we commonly see:

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. Still, Kim calls the police claiming she has been raped.

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

Note that courts are clear that voluntary intoxication – getting drunk or stoned on purpose – is never a defense to rape charges. Therefore, you cannot argue that you were too intoxicated to know your partner did not – or could not – consent.⁶

No Sexual Penetration Occurred

In every rape case, the D.A. has the burden to prove beyond a reasonable doubt that penetration occurred. In most sexual assault cases we see, 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. Therefore, prosecutors may agree to dismiss the case. Or if the most the D.A. can prove is there was non-consensual groping, then the D.A. should reduce the charge down to unlawful sexual contact.

6. Can rape victims sue?

Yes. Sexual violence victims can seek civil remedies such as monetary compensation by bringing a lawsuit.

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 you are liable. Therefore, it is possible for you to be acquitted in criminal court but found liable in civil court.

RAPE CASES	Criminal Prosecution	Civil Prosecution
Charge/cause of action	Sexual assault	Battery
Legal definition	Non-consensual sexual penetration	Intentional use of unlawful physical force
Type of law	Statutory	Common law
Is penetrative sex required?	Yes	No
Victim’s role	State witness	Plaintiff
Rapist’s role	Defendant	Defendant
Burden of proof	Beyond a reasonable doubt	By a preponderance of the evidence
Examples	Forcible rape or raping an unconscious person	Choking, holding down, or groping
Penalties	Prison, fines, and sex offender registration	Money damages and injunctive relief
Defenses	Consent or false allegations	Consent or false allegations

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

Convicted rapists must register as Colorado sex offenders.

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:

• Forensic Compliance Team (FCT)
• Sexual Assault Response Teams (SARTs)
• You Have the Right
• Support Services
• Colorado Sexual Assault Nurse Examiner / Sexual Assault Forensic Examiner (SANE/SAFE) Project (COSSP)

Financial resources for rape victims:

• Medical Forensic Exam Payment Request Form to help pay for a medical forensic exam (MFE) – Sexual Assault Victim Emergency Payment Program (SAVE)
• Victim Compensation – Colorado Division of Criminal Justice

Crisis organizations and information for survivors (Colorado):

• SAVA (Sex Assault Victim Advocate) in Northern Colorado: 970-472-4200
• The Blue Bench in Denver: 303-329-9922
• Project Safeguard in Colorado: 303-219-7049
• Office for Victims Programs (OVP)
• Ending Violence Against Women Program, Colorado District Attorney’s Council

Crisis organizations and information for survivors (National):

• RAINN (Rape, Abuse, and Incest National Network): 1-800-656-HOPE (4673)
• SCESA (National Organization of Sisters of Color Ending Sex Assault)
• 1in6 (for male victims)
• Joyful Heart Foundation: 212-475-2026
• WomensLaw.Org: 1-800-799-7233

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), date rape, spousal rape and sexual assault on a child by one in a position of trust (CRS 18-3-405.3).

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Legal references:

1. Colorado Revised Statute 18-3-402 – Sexual Assault
   

   (1) Any actor who knowingly inflicts sexual intrusion or sexual penetration on a victim commits sexual assault if:
   (a) The actor causes sexual intrusion or sexual penetration knowing the victim does not consent; or
   (b) The actor knows that the victim is incapable of appraising the nature of the victim’s conduct; or
   (c) The actor knows that the victim submits erroneously, believing the actor to be the victim’s spouse; or
   (d) At the time of the commission of the act, the victim is less than fifteen years of age and the actor is at least four years older than the victim and is not the spouse of the victim; or
   (e) At the time of the commission of the act, the victim is at least fifteen years of age but less than seventeen years of age and the actor is at least ten years older than the victim and is not the spouse of the victim; or
   (f) The victim is in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over the victim and uses this position of authority to coerce the victim to submit, unless the act is incident to a lawful search; or
   (g) The actor, while purporting to offer a medical service, engages in treatment or examination of a victim for other than a bona fide medical purpose or in a manner substantially inconsistent with reasonable medical practices; or
   (h) The victim is physically helpless and the actor knows the victim is physically helpless and the victim has not consented.
   (2) Sexual assault is a class 4 felony, except as provided in subsections (3), (3.5), (4), and (5) of this section.
   (3) If committed under the circumstances of subsection (1)(e) of this section, sexual assault is a class 6 felony. Notwithstanding any other provision of law, a person convicted of subsection (1)(e) of this section is eligible to petition for removal from the registry in accordance with section 16-22-113 (1)(b).
   (3.5) Sexual assault is a class 3 felony if committed under the circumstances described in paragraph (h) of subsection (1) of this section.
   (4) Sexual assault is a class 3 felony if it is attended by any one or more of the following circumstances:
   (a) The actor causes submission of the victim through the actual application of physical force or physical violence; or
   (b) The actor causes submission of the victim by threat of imminent death, serious bodily injury, extreme pain, or kidnapping, to be inflicted on anyone, and the victim believes that the actor has the present ability to execute these threats; or
   (c) The actor causes submission of the victim by threatening to retaliate in the future against the victim, or any other person, and the victim reasonably believes that the actor will execute this threat. As used in this paragraph (c), “to retaliate” includes threats of kidnapping, death, serious bodily injury, or extreme pain.
   (d) The actor has substantially impaired the victim’s power to appraise or control the victim’s conduct by employing, without the victim’s consent, any drug, intoxicant, or other means for the purpose of causing submission.
   (e) (Deleted by amendment, L. 2002, p. 1578, § 2, effective July 1, 2002.)
   (5)
   (a) Sexual assault is a class 2 felony if any one or more of the following circumstances exist:
   (I) In the commission of the sexual assault, the actor is physically aided or abetted by one or more other persons; or
   (II) The victim suffers serious bodily injury; or
   (III) The actor is armed with a deadly weapon or an article used or fashioned in a manner to cause a person to reasonably believe that the article is a deadly weapon or represents verbally or otherwise that the actor is armed with a deadly weapon and uses the deadly weapon, article, or representation to cause submission of the victim.
   (b)
   (I) If a defendant is convicted of sexual assault pursuant to this subsection (5), the court shall sentence the defendant in accordance with section 18-1.3-401 (8)(e). A person convicted solely of sexual assault pursuant to this subsection (5) shall not be sentenced under the crime of violence provisions of section 18-1.3-406 (2). Any sentence for a conviction under this subsection (5) shall be consecutive to any sentence for a conviction for a crime of violence under section 18-1.3-406.
   (II) The provisions of this paragraph (b) shall apply to offenses committed prior to November 1, 1998.
   (6) Any person convicted of felony sexual assault committed on or after November 1, 1998, under any of the circumstances described in this section shall be sentenced in accordance with the provisions of part 10 of article 1.3 of this title.
   (7) A person who is convicted on or after July 1, 2013, of a sexual assault 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.

   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. For a related discussion, see our article on rape vs sexual assault.
   
2. CRS 18-3-402.
3. Same; CRS 18-1.3-202; 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. Rape is a class 3 felony if it involved 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. Substantial 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. If there is a weapon, sexual assault becomes a crime of violence.
   
4. CRS 18-3-414.5. The following information about offenders is publicly searchable through the (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 you are considered a “sexually violent predator” (SVP). Offenders are classified as a sexually violent predator if 1) they were at least 18 at the time of the offense or were tried as an adult, and 2) the victim was a stranger, or the offender established a relationship for the sole purpose of sexual victimization, and 3) the CBI’s risk screening assessment indicates the offender is likely to commit a subsequent sex offense.
   
5. CRS 18-3-412.5 – .6.
6. See People v. Roark, (Colo. 1982) 643 P.2d 756. Colorado courts have still not ruled whether involuntary intoxication could be a defense to rape charges. See our related article about the statute of limitations for sexual assault in Colorado.
7. CRS 24-72-304.