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“Sexual Contact” Under Colorado Criminal Law – 18-3-404 – What You Need To Know To Understand The Law

By H. Michael Steinberg Colorado Sex Crimes Criminal Defense Lawyer – Attorney

“Sexual Contact” Under Colorado Criminal Law – 18-3-404 – What You Need To Know To Understand The Law – The hysteria surrounding sexual contact and sexual harassment claims has not stemmed the many cases of sexual assault which are simply false allegations.

A Quick Aside – This Article Addresses Sexual Contact Not Sexual Assault based on Sexual Intrusion – Unlawful sexual contact is a lesser included offense of sexual assault based on sexual intrusion. Proof of sexual intrusion requires proof of sexual contact with a person’s intimate parts satisfying the strict elements test, and unlawful sexual contact involves less serious injury than sexual intrusion and lesser culpability than sexual assault.

To separate false allegations of sexual contact from incidental contact that occurs in several environments and several setting… a Colorado criminal defense lawyer starts with the law – ALWAYS START WITH THE LAW.

What Is The Colorado Definition Of Sexual Contact Under Colorado Law?

Under Colorado law “sexual contact” has a very specific and understandable definition:

“Sexual contact” means 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.

There are several crimes that are criminally punishable under Colorado law that fall into several categories. What all of these sexual contact crimes have in common is for the purposes of sexual arousal, gratification, or abuse.

As I state in all of my articles – one should always start with THE LAW:

Here Is The Colorado Law Regarding Unlawful Sexual Contact – Section 18-3-404

§ 18-3-404 Unlawful Sexual Contact

[HMS – Section 1 Defines the ways the crime can be committed]

(1) Any actor who knowingly subjects a victim to any sexual contact commits unlawful sexual contact if:

(a) The actor knows that 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 victim is physically helpless and the actor knows that the victim is physically helpless and the victim has not consented;

or

(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;

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, unless incident to a lawful search, to coerce the victim to submit;

or

(g) The actor engages in treatment or examination of a victim for other than bona fide medical purposes or in a manner substantially inconsistent with reasonable medical practices.

(1.5) Any person who knowingly, with or without sexual contact, induces or coerces a child by any of the means set forth in section 18-3-402 to expose intimate parts or to engage in any sexual contact, intrusion, or penetration with another person, for the purpose of the actor’s own sexual gratification, commits unlawful sexual contact. For the purposes of this subsection (1.5), the term “child” means any person under the age of eighteen years.

[HMS – Section 2 is the Penalty Section]

(2)(a) Unlawful sexual contact is a class 1 misdemeanor and is an extraordinary risk crime that is subject to the modified sentencing range specified in section 18-1.3-501(3).

(b) Notwithstanding the provisions of paragraph (a) of this subsection (2), unlawful sexual contact is a class 4 felony if the actor compels the victim to submit by use of such force, intimidation, or threat as specified in section 18-3-402(4) (a), (4) (b), or (4) (c) or if the actor engages in the conduct described in paragraph (g) of subsection (1) of this section or subsection (1.5) of this section.

(3) If a defendant is convicted of the class 4 felony of unlawful sexual contact pursuant to paragraph (b) of subsection (2) of this section, the court shall sentence the defendant in accordance with the provisions of section 18-1.3-406 ; except that this subsection (3) shall not apply if the actor engages in the conduct described in paragraph (g) of subsection (1) of this section.

(4) A person who is convicted on or after July 1, 2013, of unlawful sexual contact 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.

While there are six ways to commit the Crime Of Unlawful Sexual Contact under 18-3-404 – there are four primary crimes. Broken into their component parts or “elements” – as is the case when a jury is asked to decide the guilt or innocence of a person charged with this crime:

The Four Primary Methods To Commit The Crime Of Unlawful Sexual Contact – 18-3-404

The FOUR major ways to commit the Colorado crime of Unlawful Sexual Contact – 18-3-404, are:

Unlawful Sexual Contact (Lack of Consent)

Unlawful Sexual Contact (Incapable of Appraising Nature of Conduct)

Unlawful Sexual Contact (Physically Helpless)

Unlawful Sexual Contact (Substantial Impairment)

Unlawful Sexual Contact (Lack of Consent)

The elements of the crime of unlawful sexual contact (lack of consent) are:

1. That the defendant,

2. in the State of Colorado, at or about the date and place charged,

3. knowingly,

4. subjected a person to any sexual contact,

5. knowing that the person did not consent.

Unlawful Sexual Contact (Incapable of Appraising Nature of Conduct)

The elements of the crime of unlawful sexual contact (incapable of appraising nature of conduct) are:

1. That the defendant,

2. in the State of Colorado, at or about the date and place charged,

3. knowingly,

4. subjected a person to any sexual contact,

5. knowing that the person was incapable of appraising the nature of his [her] own conduct.

Unlawful Sexual Contact (Physically Helpless)

The elements of the crime of unlawful sexual contact (physically helpless) are:

1. That the defendant,

2. in the State of Colorado, at or about the date and place charged,

3. knowingly,

4. subjected a person to any sexual contact, and

5. the person was physically helpless, and

6. the defendant knew the person was physically helpless and had not consented.

Unlawful Sexual Contact (Substantial Impairment)

The elements of the crime of unlawful sexual contact (substantial impairment) are:

1. That the defendant,

2. in the State of Colorado, at or about the date and place charged,

3. knowingly,

4. subjected a person to any sexual contact, and

5. substantially impaired the person’s power to appraise or control his [her] own conduct,

6. by employing, without the person’s consent, any drug, intoxicant, or other means for the purpose of causing submission.

Important Legal Definitions And Interpretations Of The Colorado Law Of Sexual Contact

Every series of Colorado laws (called Acts or “statutes”) has specific legal definitions for words used in those laws. Some of these definitions are actually set out in the statutes themselves – others have been interpreted and described by the Colorado Courts of Appeal.

Some of these important definitions are:

“Sexual contact” means 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.

“Touching” means to perceive or experience through the tactile sense. A defendant can perceive and experience the clothing covering a victim’s vaginal area through tactile sense even though there is a sheet between the defendant’s hand and the victim’s clothing.

“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 is not sufficient to constitute consent. Neither is submission under the influence of fear.

“Intimate parts” means the external genitalia or the perineum or the anus or the buttocks or the pubes or the breast of any person.

“Physically helpless” means unconscious, asleep, or otherwise unable to indicate willingness to act.

The Possible Penlaties (Punishment At Sentencing) For The Crime Of Unlawful Sexual Contact

Depending on the section of the law you are accused of violating – the punishments will differ.

§ 18-3-404 Unlawful Sexual Contact

Subsection (2)(a) Unlawful sexual contact is a class 1 misdemeanor and is an extraordinary risk crime that is subject to the modified sentencing range specified in section 18-1.3-501(3).

6 months-2 years in jail, and/or a fine of up to $500-$5,000.

Subsection (2)(b) Notwithstanding the provisions of paragraph (a) of this subsection (2), unlawful sexual contact is a class 4 felony if the actor compels the victim to submit by use of such force, intimidation, or threat as specified in section 18-3-402(4) (a), (4) (b), or (4) (c) or if the actor engages in the conduct described in paragraph (g) of subsection (1) of this section or subsection (1.5) of this section.

2-8 years in prison, and/or a fine of $2,000-$500,000.(3) If a defendant is convicted of the class 4 felony of unlawful sexual contact pursuant to paragraph (b) of subsection (2) of this section, the court shall sentence the defendant in accordance with the provisions of section 18-1.3-406 ; except that this subsection (3) shall not apply if the actor engages in the conduct described in paragraph (g) of subsection (1) of this section.

[If the crime is committed and a deadly weapon is involved – (used or threatened to be used – the sentence that is imposed under Colorado’s violent crime laws].

5 years-life in prison.

What Are The Defenses To The Crime Of Sexual Contact Under § 18-3-404

Every case involving the charge of Unlawful Sexual Contact under § 18-3-404 will be factually different than the next. The best defense to a Colorado charge of unlawful sexual contact will vary with the facts of the individual case.

However certain Defenses have been asserted in the past which may apply in your case:

General Denial – There was no sexual contact.

Accidental Touching – The alleged sexual contact was accidental, the intent behind the act was not sexual. Put another way, the law requires that the act of touching must be done for the purposes of “sexual gratification.”

What Does “Lack of Intent“ Mean?

Most sexual crimes require the State to establish proof of an intent of the accused to sexually gratify or arouse himself during the act charged.

The State of Colorado must prove beyond a reasonable doubt that the accused committed the act for sexual gratification

Again, it bears repeating the definition of Sexual Contact:

“Sexual contact” means 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.

Proof of the Defendant’s mental state requires that the State prove what is in the accused’s personal state of mind at the time of the alleged illegal conduct. This can be very difficult for the prosecution as, in the absence of a confession, this must be proven through the use of circumstantial evidence.

Consent – The alleged victim was not a victim at all because they consented to the contact,

Mistake – The contact was so ambiguous that the accused did not realize that the other person has not consented to the contact.

Lawful Contact – There was a legally justifiable reason for the contact.

“Sexual Contact” Under Colorado Criminal Law – 18-3-404 – What You Need To Know To Understand The Law

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The reader is admonished that Colorado criminal law, like criminal law in every state and at the Federal level, changes constantly. The article appearing above was accurate at the time it was drafted but it cannot account for changes occurring after it was uploaded.

If, after reading this article, you have questions about your case and would like to consider retaining our law firm, we invite you to contact us at the Steinberg Colorado Criminal Defense Law Firm – 303-627-7777.

Never stop fighting – never stop believing in yourself and your right to due process of law. You will not be alone in court, H. Michael will be at your side every step of the way – advocating for justice and the best possible result in your case. H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case

Over 40 Years Specializing in Colorado Criminal Law

ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at:

[email protected]

A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – please call 720-220-2277.

“A good criminal defense lawyer is someone who devotes themselves to their client’s case from beginning to end, always realizing that this case is the most important thing in that client’s life.”

You should be careful to make a responsible choice in selecting a Colorado Criminal Defense Lawyer. We encourage you to “vet” our firm. Over the last 40 plus years – by focusing ONLY on Colorado criminal law – H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, to include Colorado criminal law and procedure and trial and courtroom practice.

Putting more than 40 years of Colorado criminal defense experience to work for you.

H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way – “Sexual Contact” Under Colorado Criminal Law – 18-3-404 – What You Need To Know To Understand The Law.

Summary

Article Name

"Sexual Contact" Under Colorado Criminal Law - 18-3-404 - What You Need To Know To Understand The Law

Description

The hysteria surrounding sexual contact and sexual harassment claims has not stemmed the many cases of sexual assault and contact which are simply false allegations.

Author

H. Michael Steinberg