Consent Defense In Colorado Sex Crimes Trials – Understanding Affirmative Defenses and Elemental Defenses

by Colorado Sex Crimes Defense Lawyer – H- Michael Steinberg

Introduction – In Colorado Sex Crimes trials – the burden of proof is always on the prosecution to prove their case beyond a reasonable doubt.  Prior to 1992, the defense of consent was an affirmative defense – which if raised by the defendant at trial – was added to the elements that the prosecution had to DISPROVE beyond a reasonable doubt. 

This has been changed and changed again by the Colorado State Legislature.  In 2000, 2002, 2010 and again in 2012, they have modified this law – lightening the burden of proof by taking the affirmative defense of consent OUT OF the category of affirmative defenses.  Therefore, if consent as a defense is raised at trial – the DA no longer has to worry about disproving the defense beyond a reasonable doubt.

Colorado Affirmative Defenses – What IS An Affirmative Defense

Colorado Jury Instructions include this definition of affirmative defense:

H:01 Affirmative Defenses – Generally

In addition to proving all of the elements of the crime charged beyond a reasonable doubt, the prosecution also has the burden to disprove the affirmative defense beyond a reasonable doubt.

After considering all the evidence, if you decide the prosecution has failed to disprove beyond a reasonable doubt any one or more elements of the affirmative defense, you must return a verdict of not guilty.

Among the common affirmative defenses are:

H:04 Consent of Victim

H:05 Consent of Victim (Offenses Involving Bodily Injury or Threat of Bodily Injury)

H:08 Execution of Public Duty

H:09 Choice of Evils

H:10 Duress

H:12 Entrapment

H:13 Insufficient Age–under Ten

H:14 Intoxication–voluntary

H:15 Intoxication–involuntary

H:16 Use of Physical Force ( Self Defense )

H:17 Use of Physical Force–defense of Person

How The Law Is Changed In Sexual Assault Cases

The law now requires the District Attorney to prove it’s case – and the elements of the charges as usual, but not to DISPROVE the defense of consent. 

Here is the law:

The Law On Consent in Sexual Assault Cases in Colorado – C.R.S. 18-3-408.5 (2011)

FIRST OF TWO VERSIONS OF THIS SECTION

18-3-408.5. Jury instruction on consent – when required

In any criminal prosecution under section 18-3-402 (1) (a) or 18-3-404 (1) (a), (1) (c), (1) (d), or (1.7) or under section 18-3-402 (1) (b), (1) (c), or (1) (e) or 18-3-403 (1) (a) or (1) (b), for offenses committed before July 1, 2000, or for attempt or conspiracy to commit any crime listed in this section, upon request of any party to the proceedings, the jury shall be instructed on the definition of consent as set forth in section 18-3-401 (1.5). Notwithstanding the provisions of section 18-1-505 (4), an instruction on the definition of consent given pursuant to this section shall not constitute an affirmative defense, but shall only act as a defense to the elements of the offense.

This version of this section is effective until July 1, 2012.

18-3-408.5. Jury instruction on consent – when required

(1) In any criminal prosecution for a crime listed in subsection (2) of this section or for attempt or conspiracy to commit a crime listed in subsection (2) of this section, upon request of any party to the proceedings, the jury shall be instructed on the definition of consent as set forth in section 18-3-401 (1.5). Notwithstanding the provisions of section 18-1-505 (4), an instruction on the definition of consent given pursuant to this section shall not constitute an affirmative defense, but shall only act as a defense to the elements of the offense.

(2) The provisions of subsection (1) of this section shall apply to the following crimes:

(a) Sexual assault as described in section 18-3-402 (1) (a);

(b) Sexual assault as described in section 18-3-402 (1) (b), (1) (c), or (1) (e), as they existed prior to July 1, 2000, for offenses committed prior to July 1, 2000;

(c) Sexual assault in the second degree as described in section 18-3-403 (1) (a) or (1) (b), as they existed prior to July 1, 2000, for offenses committed prior to July 1, 2000;

(d) Unlawful sexual contact as described in section 18-3-404 (1) (a), (1) (c), or (1) (d);

(e) Unlawful sexual contact as described in section 18-3-404 (1.7), as it existed prior to July 1, 2010, for offenses committed prior to July 1, 2010;

(f) Invasion of privacy for sexual gratification as described in section 18-3-405.6; or

(g) Criminal invasion of privacy in violation of section 18-7-801.

Colorado Law You Can Use – by H. Michael Steinberg