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    Sexual Assault Cases in Colorado: A Closer Look

    How a Felony Criminal Case in Colorado Proceeds in the Colorado Courts

    1. An arrest is made (an arrest warrant or a summons is issued).
    2. The person is charged with a sex crime felony.
    3. Preliminary hearing is conducted within 30 days.
    4. Arraignment takes place in district court.
    5. Motion hearing precedes trial.

    Preliminary Hearing

    The district attorney has to produce enough evidence for the judge to determine probable cause to believe a crime has been committed and probable cause to believe the defendant has committed it. This hearing is for the purpose of determining whether enough evidence exists to proceed to trial. The court merely decides whether there is evidence that could support a conviction.

    During this hearing, the court does not weigh the credibility or believability of the witnesses and must view the evidence in the light most favorable to the prosecution. Hearsay evidence is allowed at such hearings and the defense has a very limited ability to call witnesses. If a determination of probable cause is found, the case will be sent to district court for arraignment.

    Arraignment

    An arraignment is where the defendant enters a plea of guilty or not guilty. If a plea bargain has been reached, it is often entered into at this time and a date for sentencing is set. If not, the follow is scheduled:

    • Court dates that may include motion hearing dates (where legal arguments are made concerning various aspects of the case)
    • Subpoena return dates (where documents are given to the court to review)
    • Pretrial conference dates (where the parties and the court assess whether the case will be proceeding to trial, and to handle any pretrial procedural matters)
    • The trial.

    Motion Hearing

    This is an evidentiary hearing for the judge to determine various legal and evidentiary issues in a case.

    The Trial

    A felony jury trial will have 12 people on the jury and probably one or two alternates. The verdict must be unanimous.

    The defendant has a right to a speedy trial within 6 months from the date of entry of a not guilty plea (the arraignment). The defendant may waive that right. The prosecution has the burden of proving the case beyond a reasonable doubt.

    The Primary Laws Governing Colorado Sexual Assaults
    Colorado Revised Statutes, C.R.S. 18-3-402

    C.R.S. 18-3-402 Sexual  Assault

    The statute provides that a person commits sexual assault if the person knowingly inflicts sexual intrusion or penetration on a victim if:

    1. The person causes the victim to submit by means of sufficient consequence reasonably calculated to cause submission against the victim’s will or
    2. The person knows that the victim is incapable of appraising what the perpetrator is doing or
    3. The person knows that the victim erroneously believes the person is the victim’s spouse or
    4. At the time of the commission of the act the victim is less than 15 and the person is at least 4 years older than the victim and is not the spouse of the victim or
    5. At the time of the commission of the act the victim is at least 15 but less than 17 or
    6. The person has authority over the victim and uses his position of authority to coerce the victim or
    7. The person while purporting to offer some medical service engages in some sort of treatment or examination for some other reason than a bona fide medical purpose.

    The statute goes on to provide various levels of punishment. Section (e)  is a class one misdemeanor. Sexual assault is a class three felony if any one or more of the following circumstances exist:

    1. The person causes submission of the victim by the actual application of physical force or
    2. The person causes submission of the victim by threat of imminent death or serious bodily injury or
    3. The person causes submission by threatening retaliation that the victim reasonably believes the person can execute or
    4. The person has substantially impaired the victim’s power to understand or control the person’s conduct by using drugs or other means or
    5. The victim is physically helpless and the person knows the victim is physically helpless and has not consented or
    6. The sexual assault of the person is physically aided or abetted by one or more other persons or
    7. Bodily injury, or by a deadly weapon or a simulated deadly weapon and uses that to cause the submission of the victim.

    Sexual intrusion is defined by any intrusion, however slight, by any object or any part of person’s body except the mouth, tongue or penis into the genital or anal opening of another person’s body if that sexual intrusion can reasonably be construed as being for the purpose of simple arousal, gratification, or abuse. Sexual penetration means sexual intercourse, cunnilingus, fellatio, analingus or anal intercourse. Consent means cooperation in the acts or attitudes pursuant to the exercise of free will and with knowledge of the nature of the act. One in a position of trust includes parents, anyone acting in the place of parents and charged with the parent’s rights and duties, anyone charged with the health, education and welfare of and supervision of a child.

    So Called “Forcible Rape” Charges and Definitions Under Colorado Law
    Sexual Assault: Overcome Victim’s Will Class 3 Felony C.R.S. § 18-3-402(1) and (4)(a)

    Legal Definition of Sexual Assault

    “Any actor who knowingly inflicts sexual intrusion or sexual penetration on a victim commits sexual assault if: 1(a) The actor causes submission of the victim by means of sufficient consequence reasonably calculated to cause submission against the victim’s will and 4(a) actor causes submission of the victim through the actual application of physical force.”

    Possible Sentence to Probation?
         Yes.

    What Would The Term of Probation Be?
         20 Years to Life.


    What Type of Probation?
         Intensive sex offender probation. See Chart Entitled “Sex Offender Probationary Terms”

    If Rigorous Terms of Probation Violated, What Is Potential Consequence?
         Four years to life in prison (4 to life).

    Possible Sentence to Prison?
         Yes (possible, but not mandatory).

    If Sentenced to Prison, What Will the Term Be?
    Four to life in prison (4 to life).

    If Sentenced to and Released From Prison, What Is Term of Parole?
         20 years to life (20 to life).

    Registration as a Sex Offender?
         Yes. For life.

    Lesser Charges

    The following are two lesser charges that could be returned by a jury considering so called forcible rape charges:

    Unlawful Sexual Contact Class 4 Felony C.R.S. § 18-3-404(2) and (3)

    Legal Definition

    “Any actor who knowingly subjects a victim to any sexual contact commits unlawful sexual contact if…the actor knows that the victim does not consent…” and “…the actor compels the victim to submit by use of force, intimidation or threat…”

    Possible Prison?
         Yes.

    Is Prison Mandatory if Convicted?
    No.

    If Sentenced to Prison, What Is the Term?
         Indeterminate term of at least 2 years to the defendant’s natural life (2 to life).

    Possible Sentence to Probation?
         Yes.

    If in Prison, When Can He Be Reviewed For Parole?
         Upon serving the minimum term of his sentence.


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    ___________________________
    H. Michael Steinberg Esq.
    Attorney and Counselor at Law
    The Colorado Criminal Defense Law Firm of H. Michael Steinberg
    A Denver, Colorado Lawyer Focused Exclusively On
    Colorado Criminal Law For Over 40 Years.
    The Edward Building
    8400 East Prentice Ave, Penthouse 1500
    Greenwood Village, Colorado, 80111
    E-Mail:  [email protected]
    Primary Web Site:  http://www.HMichaelSteinberg.com
    Colorado Criminal Law Blog:  www.Colorado-Criminal-Lawyer-Online.com
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    Cell:  720.220.2277
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