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Under Colorado Law – Can I Force the Alleged Victim of a Sexual Assault To Take a Polygraph? – 18-3-407.5

[NO – Not under Colorado Criminal Law]

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

Under Colorado Law – Can I Force the Alleged Victim of a Sexual Assault to Take a Polygraph? This topic of Colorado law and it’s frustrating answer – is a question often asked of my law firm.

The answer is frustrating because it means that a young woman can make an accusation that destroys lives with no way – other than trial – to prove she (or he) is lying.

Under Colorado Law – Can I Force the Alleged Victim of a Sexual Assault To Take a Polygraph? – 18-3-407.5

The Federal Violence Against Women Act (VAWA) Forces Colorado To Enact Laws Designed To “Protect” Those Bringing Sex Assault Charges Or Lose Federal Funds

In 2005 Congress enacted the Violence Against Women Act (VAWA). This massive law – re-enacted just recently – provides federal funds from the United States Department of Justice to the states in the form of law enforcement and other types of grants.

In 2007, the Department of Justice, Office on Violence Against Women threatened to cut off funding to Colorado state agencies and local governments – such as victim services, law enforcement, district attorneys, and court agencies who were receiving these grants, unless the State certifies that – among other demands – by January 1, 2009 – compliance with “the statutory eligibility requirements of the Violence Against Women Act.”

One of those requirements is NO POLYGRAPHING – Lie Detectors For The Alleged Victims Of Sexual Assault

In 2008 Colorado passed HB08-1217 to make certain the flow of money continued:

The Bill – the law – 18-3-407.5. – at least does four things:

1) The law – 18-3-407.5. allows the alleged victims of sexual assault to receive a “forensic medical exam” LINK without having to ever participate in the criminal justice system or cooperate with law enforcement as a requirement for receiving such an exam;

2) The law – 18-3-407.5. provides that alleged victims who do not want to cooperate with law enforcement or participate in the criminal justice system do not have to pay the cost of the forensic medical exam;

3) The law – 18-3-407.5. – makes mandates that alleged victims of a sexual offense may not be asked or required to submit to a polygraph examination as a condition of a criminal investigation or the prosecution of a Colorado sexual assault case

and

4) The law – 18-3-407.5. – provides for the storage for a minimum of two years of forensic evidence collection kits (DNA Kits) provided to alleged victims who do not wish to cooperate with law enforcement.

A Closer Look At The Law – Two Categories Of Alleged Victims Of Sexual Assault

The law creates two types of alleged sexual assault – rape victims in Colorado

Type 1 – Alleged Victims Who Choose Not Immediately Report A Sexual Assault – Rape Allegation To Law Enforcement

Type 1 – As Regards “Forensic Examinations”

Under this Colorado law (C.R.S. §18-3-407.5), the alleged “victim” of a sexual crime – will receive a medical forensic exam without ever having to cooperate further with law enforcement. No payment for the exam is necessary.

Typically the exam is done by a “Sexual Assault Nurse Examiner” (SANE Nurse) and is a Medical Forensic Exam program (MFEP).

If a Drug Facilitated Sexual Assault (DFSA) is alleged – an additional medical forensic exam that tests for so called “date rape” drugs is also performed if the medical professional attending the exam “determines a need for DFSA testing.” The state pays for that also and only the alleged victim may access the results.

The idea in behind this new law – is that alleged victims of sexual assault sometimes do not want – at first – to cooperate with law enforcement. They want to ” consider all of their options before proceeding.” The law allows the alleged ” victim” the time to decide whether they wish to cooperate.

What The Law Does NOT Do – How It Harms The Defense

A prosecutor will tell you ( and I was a prosecutor for over 13 years) that the forensic evidence collected during a medical forensic examination is critical to winning the case. The DA wil also tell you – that is not enough. The “circumstances” surrounding the alleged crime are also critically important.

From the defense perspective – the defense side of a an alleged sexual assault – while delaying the forensic exam may “benefit” the mental health of the alleged victim – IT HAS EXACTLY THE OPPOSITE EFFECT ON THE DEFENSE OF THESE ALLEGATIONS ON THE DEFENSE OF THE CASE. To properly investigate and then defend these cases – a Colorado criminal defense lawyer must quickly and competently to gather “defense based evidence” of the falsity of the allegations.

Such evidence may include photos of the defendant ( they will not be taken if there is no sex assault investigation for two years) – locating eye witnesses – locating so called “consent witnesses” – establishing an alibi and a myriad of other kinds of evidence. If the prosecution is delayed while the alleged victim is “deciding” whether or not tp prosecute – that evidence DISAPPEARS!

HMS – Type 2 – The Alleged Victim Who Chooses To Formally Report A Sexual Assault – Rape Allegation To Law Enforcement

HMS – Type 2 – As Regards Forensic Exams

Same as Type 1.

Drug Facilitated Sexual Assault Testing (DFSA)

Same as Type 1 – BUT law enforcement is now allowed to receive the test results.

Other “Benefits” To Those Who “Cooperate” With The Prosecution Of Sex Assault Allegations.

Victim’s “Comp” – Financial Assistance To Alleged Sexual Assault Victims

Colorado has had for some time now a “Victim Compensation Program” (Victim’s Comp) program – that provides financial assistance with medical bills. While receipt of this money used to be contingent on the alleged fully cooperating with law enforcement officials, today – the Victim’s Comp. Board can ” waive this requirement” for :good cause.”

The money is administered through the District Attorney’s office.

This Law Does NOT Alter Colorado’s Mandatory Reporting Law

Under Colorado law, licensed medical personnel are still required to report this crime to a law enforcement. See C.R.S. § 12-36-135. There is no “anonymous reporting.”

Storing Forensic Medical Exam Evidence/Samples when the Victim Does Not want to Cooperate with Law Enforcement

After the forensic medical exam is completed, the law enforcement agency where the crime occurred – must – under the law pick-up the forensic kit and then store it for a minimum of two years.

Under Colorado Law – Can I Force the Alleged Victim of a Sexual Assault to Take a Polygraph? – NO – Not under Colorado Criminal Law 18-3-407.5 – The Law

18-3-407.5. Victim evidence – forensic evidence – electronic lie detector exam without victim’s consent prohibited

(1) Any direct cost associated with the collection of forensic evidence from the victim shall be paid by the referring or requesting law enforcement agency.

(2) A law enforcement agency, prosecuting officer, or other government official may not ask or require a victim of a sexual offense to submit to a polygraph examination or any form of a mechanical or electrical lie detector examination as a condition for proceeding with any criminal investigation or prosecution of an offense.

A law enforcement agency shall conduct the examination only with the victim’s written informed consent. Consent shall not be considered informed unless the law enforcement agency informs the victim in writing of the victim’s right to refuse to submit to the examination.

In addition, the law enforcement agency shall orally provide to the victim information about the potential uses of the results of the examination.

(3) (a) A law enforcement agency, prosecuting officer, or other government official may not ask or require a victim of a sexual offense to participate in the criminal justice system process or cooperate with the law enforcement agency, prosecuting officer, or other government official as a condition of receiving a forensic medical examination that includes the collection of evidence.

(b) A victim of a sexual offense shall not bear the cost of a forensic medical examination that includes the collection of evidence that is used for the purpose of evidence collection even if the victim does not want to participate in the criminal justice system or otherwise cooperate with the law enforcement agency, prosecuting officer, or other government official. The division of criminal justice in the department of public safety shall pay the cost of the examination.

(c) When personnel at a medical facility perform a forensic medical examination that includes the collection of evidence based on the request of a victim of a sexual offense, not in connection with a referring or requesting law enforcement agency, and the medical facility performing the examination knows where the crime occurred, the facility shall contact the law enforcement agency in whose jurisdiction the crime occurred regarding preservation of the evidence.

If the medical facility does not know where the crime occurred, the facility shall contact its local law enforcement agency regarding preservation of the evidence. Notwithstanding any other statutory requirements regarding storage of biological evidence, the law enforcement agency contacted by the medical facility shall retrieve the evidence from the facility and store it for at least two years.

Under Colorado Law – Can I Force the Alleged Victim of a Sexual Assault to Take a Polygraph? – NO – Not under Colorado Criminal Law 18-3-407.5

Denver Colorado Sex Crimes Criminal Defense Lawyer

ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author – [email protected] or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-227-7777.

If you are charged with A Colorado crime or you have questions about Polygraphing An Alleged Sex Assault Victim, please call our office. The Law Offices of H. Michael Steinberg, in Denver, Colorado, provide criminal defense clients with effective, efficient, intelligent and strong legal advocacy. We can educate you and help you navigate the stressful and complex legal process related to your criminal defense issue.

H. Michael Steinberg, is a Denver, Colorado criminal defense lawyer with over 40 years of day to day courtroom experience – specializing only in Colorado Criminal Law along the Front Range. He will provide you with a free initial case consultation to evaluate your legal issues and to answer your questions with an honest assessment of your options. Remember, it costs NOTHING to discuss your case. So call now for an immediate free phone consultation.

Helping Clients To Make Informed Decisions In the Defense of Colorado Criminal Cases.

Colorado Defense Lawyer H. Michael Steinberg provides solid criminal defenses for clients throughout the Front Range of Colorado – including the City and County courts of Adams County, Arapahoe County, City and County of Boulder, City and County of Broomfield, City and County of Denver, Douglas County, El Paso County – Colorado Springs, Gilpin County, Jefferson County, Larimer County, and Weld County,…. and all the other cities and counties of Colorado along the I-25 Corridor… as reagrds the question – Under Colorado Law – Can I Force the Alleged Victim of a Sexual Assault to Take a Polygraph? – NO – Not under Colorado Criminal Law 18-3-407.5.