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Colorado Sex Crimes Law – Analysis of Sexual Exploitation Cases– How These Cases Can Quickly Turn Into Life Sentences

Introduction – When Colorado passed the Sex Offender Lifetime Supervision Act (The Act), the state legislature provided for three levels of sentencing, inside the lifetime supervision provisions – further broken down to (1) lifetime probation and (2) lifetime prison and outside the lifetime provisions… for example -so called economic sex crimes. On of these is Sexual Exploitation of Children Charges – For these crimes lifetime sentences are “discretionary.”

Colorado’s Sex Offender Lifetime Supervision Act (Act), sections 18-1.3-1001 to -1012, C.R.S. 2010, identifies two categories of offenders subject to indeterminate sentencing:

(1) sex offenders who have committed one of the sex offenses enumerated in section 18-1.3-1003(5), C.R.S. 2010, for whom indeterminate sentencing is mandatory pursuant to section 18-1.3-1004(1)(a), C.R.S. 2010;

and

(2) persons who have committed one of the “so-called economic sex crimes” for whom indeterminate sentencing is within the court’s discretion under certain circumstances. See § 18-1.3-1004(4), C.R.S.

Because sexual exploitation of a child is not one of the enumerated sex offenses subject to mandatory indeterminate sentencing, the court is mandated to review the case for so called “discretionary lifetime sentencing.”

The discretionary lifetime statute, is found in the law – section 18-1.3-1004(4), which provides in pertinent part as follows:

(a) The court may sentence any person pursuant to the provisions of this section if:

(I) The person is convicted of or pleads guilty or nolo contendere to a crime specified in paragraph (b) of this subsection (4);

and

(II) An assessment of the person pursuant to section 16-11.7-104, C.R.S., determines that the person is likely to commit one or more of the offenses specified in section 18-3-414.5(1)(a)(II), under the circumstances described in section 18-3-414.5(1)(a)(III).

(b) The provisions of this subsection (4) shall apply to any person who is convicted of . . .

(II) Sexual exploitation of children, as described in section 18-6-403 . . . .

The Impact of OSE – Offense Specific Evaluations

This law directly cross references section 16-11.7-104, C.R.S. 2010, which is the requirement for sex offense specific evaluations and which provides that:

On and after January 1, 1994, each sex offender who is to be considered for probation shall be required, as a part of the presentence or probation investigation . . . to submit to an evaluation for treatment, an evaluation for risk, procedures required for monitoring of behavior to protect victims and potential victims, and an identification . . . . § 16-11.7-104(1), C.R.S. 2010

Colorado’s Sexually Violent Predator (SVP) Statute

The law also cross references section 18-3-414.5(1)(a)(II) and (1)(a)(III), C.R.S. 2010, which are part of the SVP statute.

Section 18-34-14.5(1)(a)(II) lists the offenses that may give rise to an SVP designation, and section 18-3-414.5(1)(a)(III):

The SVP Law … sets forth one of the four statutory criteria required for an SVP designation, specifically the criterion that the offender’s victim “was a stranger to the offender or a person with whom the offender established or promoted a relationship primarily for the purpose of sexual victimization.”

Thus, the discretionary indeterminate sentencing statute permits a court to sentence an offender to an indeterminate term only if:

(1) he or she is convicted of, or pleads guilty or nolo contendere to, an economic sex crime specified in the statute,

and

(2) an assessment of that offender, pursuant to section 16-11.71-04, determines that he or she is likely to commit an SVP offense against a stranger or against a person with whom a relationship is established or promoted primarily for the purpose of sexual victimization.

However, even if these prerequisites are met beyond a reasonable doubt, the decision to impose an indeterminate sentence is committed to the discretion of the court.

The Analysis of The Impact of Sexually Violent Predator Law in Recent Colorado Cases

In a recent (2012) Colorado case, a defendant contended that the evidence of the SVP designation “was insufficient to satisfy the second prong of the statute because the prosecution failed to prove there was an assessment required by section 18-1.3-1004(4)(a)(II). Therefore, he argued that the indeterminate sentences on twenty-four of the sexual exploitation counts must be vacated. The court was not persuaded.

In this 2012 case, prior to sentencing, the defendant in fact underwent a mental health sex offense specific evaluation conducted by a Sex Offender Management Board registered sex offender evaluator.

The purpose of this evaluation was “to assess the nature and scope of any paraphilic behavior exhibited by [defendant],” to identify “any related treatment needs, amenability, and risk factors pertaining to issues of community safety,” and to “provide a recommendation regarding [defendant’s] receiving an indeterminate or determinate sentence.”

Thus, the evaluator reviewed the results of defendant’s psychological tests, risk assessments, sexual arousal assessment, and clinical interviews, and made the following recommendation:

It is recommended that [defendant] not be given a community-based sentence, such as probation, as the length, duration, and relationship circumstances of his instant offense behavior, and pedophilic sexual arousal, reflect significant concern. It is recommended that [defendant] be sentenced to the Department of Corrections until such time as significant offense specific treatment goals and objectives have been realized. . .

Community based sex offense specific treatment is recommended after completion of any Department of Corrections sentence at the discretion of the Court. This conclusion is reached after consideration of the following factors: pedophilic interest per the Penile Plethysmograph, absence of any age appropriate consensual sexual relationship, having only male victims, having unrelated victims, being in a position of trust with the victims of his sexual abuse behavior, and having a history of low motivation for treatment. As such, an indeterminate sentence, such as lifetime probation, is warranted in this case.

The evaluator then attached a “special letter” to defendant’s sex offense specific evaluation, in which the evaluator reiterated his recommendation that defendant receive an indeterminate sentence. The letter stated in pertinent part as follows:

A special letter related to the sentencing of the defendant that related to his likelihood of committing Sexual Assault, Unlawful Sexual Contact, Sexual Assault on a Child, and Sexual Assault on a Child by one in a Position of Trust, was also attached to his Mental Health Sex Offense evaluation.

. . . .

The Devastating Impact of the OSE Evaluation

It was the opinion of this evaluator, based on research supported risk factors, that the defendant presented with significant risk to engage in Sexual Assault on a Child and Unlawful Sexual Contact behaviors. While he did not meet the criteria to be designated a Sexually Violent Predator… it was STILL the recommendation of the evaluator, based upon the available data, that the defendant receive an Indeterminate sentence for the purpose of lifetime monitoring, management, and supervision.

The same evaluator also completed a Colorado Sexually Violent Predator Assessment Screening Instrument prior to sentencing. He concluded that defendant did not meet the criteria for an SVP designation because defendant did not score above the threshold level on any of the risk scales or checklists.

At sentencing, the prosecution requested indeterminate sentences on the twenty-four exploitation counts relating to the child victims.

The Court’s Conclusion:

The Court of Appeals concluded that “the evidence was sufficient to satisfy the requirements of section 18-1.3-1004(4).”

Here was their reasoning:

First, the sex offense specific evaluation, which evaluated defendant for treatment and risk and which was conducted as part of the presentence investigation, was precisely the “assessment of the person pursuant to section 16-11.7-104, C.R.S.” that is required by the discretionary indeterminate sentencing statute.

Second, the evaluation and the attached special letter satisfied the statutory requirement of an “assessment . . . [that] determines that the person is likely to commit one or more of the offenses specified in [the SVP statute].”

The letter expressly stated that defendant “presents with significant risk to engage in Sexual Assault on a Child and Unlawful Sexual Contact behaviors.” In our view, this statement reflects the evaluator’s determination that defendant is likely to commit one of two SVP offenses, which satisfies the statute.

Also, the evaluator made the statement about defendant’s “significant risk to engage in” an SVP offense in direct response to an inquiry about defendant’s “likelihood of committing” an SVP offense and about the appropriateness of an indeterminate sentence. This context for the evaluator’s statement reinforces our conclusion that the evaluator intended to make a determination that would satisfy the discretionary indeterminate sentencing statute.

The evaluation and special letter provided ample evidence that, if defendant were to commit an SVP offense, it would be “under the circumstances described in section 18-34-14.5(1)(a)(III)”; in other words, defendant would likely commit such an offense against a victim who is a stranger or who is a person with whom a relationship is established or promoted primarily for the purpose of sexual victimization. According to the evaluator’s notes in the sex offense specific evaluation, defendant “acknowledges seeking and grooming underage victims for sexual contact” and “befriending [his] victims with gifts, showing them pornography, and taking . . . images of them for his own sexual gratification.”

The Conclusion:

The Court of Appeals concluded that the prosecution presented sufficient evidence to satisfy the prerequisites of the discretionary indeterminate sentencing statute.