Rights of the Accused
Felony Sex Assaults
There are many different sex crimes in Colorado. They range from sexual assault to misdemeanor sex offenses such as public indecency. Sex assault can be charged as a felony or misdemeanor. In Colorado, many felony sex assaults carry indeterminate sentences, which means an offender can be sentenced up to life in prison and will not be released until the parole board grants parole. Felony sex assaults may also require lifetime sex offender registration. There are various types of felony sex assaults. Some of the most common factors that will elevate a sex assault to a felony include the use of force, the age of victim, and whether the victim claims they were drugged. However, there are other instances such as when the assault was committed upon a victim who is hospitalized or in police custody.
Misdemeanor Sex Assaults
Once instance in which an alleged sex assault may charge as a misdemeanor is when the victim is between the ages of 15-17, the offender is not more than 4 years older than the victim, and there are not allegations of the use of force. In that circumstance, even though the victim consented to the sexual contact, because they are a minor, it is still a crime. The reason it is a crime even if the victim consents is because the law does not recognize that a minor can consent to sex with an adult. A misdemeanor sexual assault carries up to 2 years in jail and will require the defendant to register as a sex offender after release.
Child Sex Assaults
Any sexual contact by an adult against a minor below the age of 15 is always a felony offense. It is illegal for an adult to have any sexual contact with a child under 15 even if the victim consents to the contact. If force is used or the defendant was in a position of trust over the child, there are enhanced sentencing provisions that increase the penalties for child sex assaults.
Sex Assault Defenses
Consent is the most common defense in a sex assault case, but consent is not a defense to a sex assault committed against a minor. In cases dealing with a minor, the defense is usually that the offense did not happen or someone else may have committed the offense. Minors are very susceptible to influence, and in many cases, minors have fabricated allegations of sex assault. This often occurs in divorce cases where one parent may suspect the other sexually assaulted the child, and they suggest to the child that something happened. Overzealous law enforcement, teachers, or care takers can also be very suggestive in questioning children about potential sex assaults. Because children are very susceptible to influence by adults, children are supposed to be questioned by trained professionals to avoid being influenced into making a false accusation. Therefore, the defense should always examine every statement made by a child to look for inconsistencies and evidence that their testimony may be influenced by improper interrogation techniques.
There are also cases where a minor may fabricate a story of sex assault. This is common in child custody cases. If a child does not want to live with their mother, they may claim that the mother’s boyfriend sexually assaulted them. It can also occur if a minor does not like a teacher at their school, or sometimes the child may make an allegation to gain sympathy or attention. When a child makes an allegation of a sex assault, it is important to examine the prior relationship between the child and suspect to see if there is a motive for the child to lie. It is also important to examine everything the child says about when, where, and what happened as fabricated allegations can sometimes contain facts that do not make sense because it did not really happen. Medical evidence is not necessary for the prosecution to prove a sex assault case, but there are often times when an allegation can be proven not to be credible if it is not supported by a subsequent medical examination.
The child may name a suspect, but that suspect may not be the real assailant. There can be situations when medical evidence supports that a child has been sexually active. A child may lie about who they have had sexual contact with because they have been threatened or they are protecting someone else. If a teenager has strict parents who find out they have been sexually active, they may make up false accusations of sex assault to avoid being punished and protect their boyfriend or girlfriend. If a child was assaulted by a family member, they may also name a different suspect to protect the family member or because they are afraid of them.
Internet Luring of a Child
Even if there is no sexual contact, inappropriate conversations can be enough to be charged with a sex crime. Internet luring of a child is when an adult communicates via computer, text message, or telephone with someone they believe to be a minor, and in that communication, they describe explicit sexual contact and invite the minor to meet with them. The minor has to be under the age of 15 and the offender must be at least 4 years older than the minor. The minor also does not have to be a real person. If an undercover law enforcement officer is communicating with a suspect and pretends to be under the age of 15, that is a violation. However, the suspect needs to know that he is communicating with a minor under the age of 15. If there is an undercover officer pretending to be a minor, the offender needs to believe that their communications are with someone under the age of 15. It is not a defense to internet luring of a child that a meeting never took place. The offender only has to invite the minor to meet with them.
There is a defense if the defendant did not know or was never told the age of the victim during the communications. Since most cases involve communication via email, social media, or text message, there is usually a transcript of the communications between the parties. While the law does not require for there to be a transcript of the communication, if a transcript shows the minor’s age was never disclosed it can be helpful to the defense. Since these cases also involve electronic communications, the use of an expert to examine the computer or phone allegedly used can sometimes be beneficial. It can also be a defense that someone else was using the defendant’s phone or computer.
Sex Offender Registration
In Colorado, sex offenders are required to register and can be charged with a crime if they fail to register or do not fully comply with registration requirements. The sex offender registry is public and contains a lot of identifying information about the offender including their address, photo, and the charges they were convicted of. Even if the offender’s conviction is from another state, they are required to follow Colorado’s sex offender requirements if they reside in Colorado. The offender will have to register with local authorities in the county where they reside, and if they have multiple residences they will have to register in each jurisdiction. Depending on the type of sex offense conviction the offender will have to register every year or every 90 days. Failing to register or providing false information to the registry is a separate crime, which can be a misdemeanor or a felony.
Most Colorado sex offenses require lifetime registration, but an offender can petition to be removed from the registry after a certain amount of time. The time period that the offender must register prior to petitioning for removal depends on the offense of conviction. If the offender received a deferred sentence for a sex offense, they may petition to be removed after completing the deferred sentence. Certain misdemeanor offenders can petition for removal 5 years after completing their sentence. If an offender was convicted of the misdemeanor offense of 3rd degree sex assault or unlawful sexual contact, they can petition for removal 10 years after completing their sentence. Most felony sex offenders are not eligible to petition for removal until 10 years or 20 years after completing their sentence depending on the type of conviction. If the offender is considered a sexual violent predator, they can never petition to be removed from the sex offender registry. An offender is only eligible to petition for relief, if they have not been convicted of any other sex offense during the period of their registration.
Call Ben LaBranche if You Have Been Arrested for a Sex Offense.
If you have been charged with a sex offense, you need a lawyer with experience. Sex offenses carry the some of the harshest penalties and will require sex offender registration. The stakes are very high in every sex assault case, even if it is a misdemeanor.
Call Ben LaBranche at (225) 927-5495 if you have been arrested for a sex offense.
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