Hello, spacehog371-ga!
Most of your questions can be answered by reading the applicable
Colorado Statutes regarding "Unlawful Sexual Behavior." If your
acquaintance is legally an adult and the victim is a minor, this a
difficult situation. Adult sexual activity with a minor can be a
punishable offense if the minor decides to take action. The severity
of the offense simply increases depending on the specific
circumstances, but the activity may still be considered a crime.
While consensual sexual activity between minors and adults is not an
uncommon occurrence, it is a dangerous liaison that can quickly take
an ugly turn if the under aged party realizes they have not truly been
a willing partner. Not all seemingly "consensual" sexual relationships
between minors and adults are exactly that - consensual. Secondly, if
the minor partner decides to punish the adult partner for some reason,
or if the parent(s) find out about an existing sexual relationship
between their minor child and a legal adult, a lawsuit can be just
around the corner.
If I am misdirected, and your acquaintance is a minor as well, the
various sections of the Colorado statutes will still provide you with
the legal definitions and interpretations of sexual assault. Since the
details are sketchy, you will be the best interpreter of the law as it
pertains to your friend's situation.
* I know you know the disclaimer, but let me reiterate - I am not a
lawyer, and the references I have provided are for informational
purposes only. In no way do I intend to provide you with legal advice.
My hope is that the following information will help you to become
better informed should you decide to follow up with a legal
consultation.
THE COLORADO STATUTES
***********************
Relevant sections of the Colorado statutes regarding sexual offenses
are excerpted below:
http://198.187.128.12/colorado/lpext.dll?f=templates&fn=fs-main.htm&2.0
To access the statutes online, or to read other sections,
Click the + sign next to the link for "Colorado Statutes" on the left
sidebar.
Click the + sign next to "Title 18 - Criminal Code"
Scroll down to "Article 3 - Offenses Against the Person" and click on the
+ sign.
Scroll down to "Unlawful Sexual Behavior" and click on the + sign.
* From there, you can see the following sections I have excerpted, and read
more in depth by looking through the "Annotations" under each section
of the law. The Annotations may help you determine how the law has
been applied in certain circumstances that may be applicable to the
case in question.
* Please be patient as the page takes some time to load!
FROM THE COLORADO STATUTES : TITLE 18 CRIMINAL CODE: ARTICLE 3 -
OFFENSES AGAINST THE PERSON : PART 4 - UNLAWFUL SEXUAL BEHAVIOR
===============================================================================
http://198.187.128.12/colorado/lpext.dll?f=templates&fn=fs-main.htm&2.0
18-3-401. DEFINITIONS
=======================
As used in this part 4, unless the context otherwise requires:
(1) "Actor" means the person accused of a sexual offense pursuant to this part 4.
(1.5) "Consent" means cooperation in act or attitude pursuant to an
exercise of free will and with knowledge of the nature of the act. A
current or previous relationship shall not be sufficient to constitute
consent under the provisions of this part 4. Submission under the
influence of fear shall not constitute consent. Nothing in this
definition shall be construed to affect the admissibility of evidence
or the burden of proof in regard to the issue of consent under this
part 4.
(1.7) "Diagnostic test" means a human immunodeficiency virus (HIV)
screening test followed by a supplemental HIV test for confirmation in
those instances when the HIV screening test is repeatedly reactive.
(2) "Intimate parts" means the external genitalia or the perineum or
the anus or the buttocks or the pubes or the breast of any person.
(2.5) "Pattern of sexual abuse" means the commission of two or more
incidents of sexual contact involving a child when such offenses are
committed by an actor upon the same victim.
(3) "Physically helpless" means unconscious, asleep, or otherwise
unable to indicate willingness to act.
(3.5) One in a "position of trust" includes, but is not limited to,
any person who is a parent or acting in the place of a parent and
charged with any of a parent's rights, duties, or responsibilities
concerning a child, including a guardian or someone otherwise
responsible for the general supervision of a child's welfare, or a
person who is charged with any duty or responsibility for the health,
education, welfare, or supervision of a child, including foster care,
child care, family care, or institutional care, either independently
or through another, no matter how brief, at the time of an unlawful
act.
(4) "Sexual contact" means the knowing touching of the victim's
intimate parts by the actor, or of the actor's intimate parts by the
victim, or the knowing touching of the clothing covering the immediate
area of the victim's or actor's intimate parts if that sexual contact
is for the purposes of sexual arousal, gratification, or abuse.
(5) "Sexual intrusion" means any intrusion, however slight, by any
object or any part of a 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
purposes of sexual arousal, gratification, or abuse.
(6) "Sexual penetration" means sexual intercourse, cunnilingus,
fellatio, analingus, or anal intercourse. Emission need not be proved
as an element of any sexual penetration. Any penetration, however
slight, is sufficient to complete the crime.
(7) "Victim" means the person alleging to have been subjected to a
criminal sexual assault
18-3-402. SEXUAL ASSAULT
==========================
(1) Any actor who knowingly inflicts sexual intrusion or sexual
penetration on a victim commits sexual assault if:
(a) The actor causes submission of the victim by means of sufficient
consequence reasonably calculated to cause submission against the
victim's will; or
(b) The actor knows that the victim is incapable of appraising the
nature of the victim's conduct; or
(c) The actor knows that the victim submits erroneously, believing the
actor to be the victim's spouse; or
(d) At the time of the commission of the act, the victim is less than
fifteen years of age and the actor is at least four years older than
the victim and is not the spouse of the victim; or
(e) At the time of the commission of the act, the victim is at least
fifteen years of age but less than seventeen years of age and the
actor is at least ten years older than the victim and is not the
spouse of the victim; or
(f) The victim is in custody of law or detained in a hospital or other
institution and the actor has supervisory or disciplinary authority
over the victim and uses this position of authority to coerce the
victim to submit, unless the act is incident to a lawful search; or
(g) The actor, while purporting to offer a medical service, engages in
treatment or examination of a victim for other than a bona fide
medical purpose or in a manner substantially inconsistent with
reasonable medical practices; or
(h) The victim is physically helpless and the actor knows the victim
is physically helpless and the victim has not consented.
(2) Sexual assault is a class 4 felony, except as provided in
subsections (3), (3.5), (4), and (5) of this section.
(3) If committed under the circumstances of paragraph (e) of
subsection (1) of this section, sexual assault is a class 1
misdemeanor and is an extraordinary risk crime that is subject to the
modified sentencing range specified in section 18-1.3-501 (3).
(3.5) Sexual assault is a class 3 felony if committed under the
circumstances described in paragraph (h) of subsection (1) of this
section.
(4) Sexual assault is a class 3 felony if it is attended by any one or
more of the following circumstances:
(a) The actor causes submission of the victim through the actual
application of physical force or physical violence; or
(b) The actor causes submission of the victim by threat of imminent
death, serious bodily injury, extreme pain, or kidnapping, to be
inflicted on anyone, and the victim believes that the actor has the
present ability to execute these threats; or
(c) The actor causes submission of the victim by threatening to
retaliate in the future against the victim, or any other person, and
the victim reasonably believes that the actor will execute this
threat. As used in this paragraph (c), "to retaliate" includes threats
of kidnapping, death, serious bodily injury, or extreme pain; or
(d) The actor has substantially impaired the victim's power to
appraise or control the victim's conduct by employing, without the
victim's consent, any drug, intoxicant, or other means for the purpose
of causing submission.
(e) (Deleted by amendment, L. 2002, p. 1578, § 2, effective July 1, 2002.)
(5) (a) Sexual assault is a class 2 felony if any one or more of the
following circumstances exist:
(I) In the commission of the sexual assault, the actor is physically
aided or abetted by one or more other persons; or
(II) The victim suffers serious bodily injury; or
(III) The actor is armed with a deadly weapon or an article used or
fashioned in a manner to cause a person to reasonably believe that the
article is a deadly weapon or represents verbally or otherwise that
the actor is armed with a deadly weapon and uses the deadly weapon,
article, or representation to cause submission of the victim.
(b) (I) If a defendant is convicted of sexual assault pursuant to this
subsection (5), the court shall sentence the defendant in accordance
with section 18-1.3-401 (8) (e). A person convicted solely of sexual
assault pursuant to this subsection (5) shall not be sentenced under
the crime of violence provisions of section 18-1.3-406 (2). Any
sentence for a conviction under this subsection (5) shall be
consecutive to any sentence for a conviction for a crime of violence
under section 18-1.3-406.
(II) The provisions of this paragraph (b) shall apply to offenses
committed prior to November 1, 1998.
(6) Any person convicted of felony sexual assault committed on or
after November 1, 1998, under any of the circumstances described in
this section shall be sentenced in accordance with the provisions of
part 10 of article 1.3 of this title.
18-3-404. UNLAWFUL SEXUAL CONTACT
==================================
(1) Any actor who knowingly subjects a victim to any sexual contact
commits unlawful sexual contact if:
(a) The actor knows that the victim does not consent; or
(b) The actor knows that the victim is incapable of appraising the
nature of the victim's conduct; or
(c) The victim is physically helpless and the actor knows that the
victim is physically helpless and the victim has not consented; or
(d) The actor has substantially impaired the victim's power to
appraise or control the victim's conduct by employing, without the
victim's consent, any drug, intoxicant, or other means for the purpose
of causing submission; or
(e) Repealed.
(f) The victim is in custody of law or detained in a hospital or
other institution and the actor has supervisory or disciplinary
authority over the victim and uses this position of authority, unless
incident to a lawful search, to coerce the victim to submit; or
(g) The actor engages in treatment or examination of a victim for
other than bona fide medical purposes or in a manner substantially
inconsistent with reasonable medical practices.
(1.5) Any person who knowingly, with or without sexual contact,
induces or coerces a child by any of the means set forth in section
18-3-402 to expose intimate parts or to engage in any sexual contact,
intrusion, or penetration with another person, for the purpose of the
actor's own sexual gratification, commits unlawful sexual contact. For
the purposes of this subsection (1.5), the term "child" means any
person under the age of eighteen years.
(1.7) Any person who knowingly observes or takes a photograph of
another person's intimate parts without that person's consent, in a
situation where the person observed has a reasonable expectation of
privacy, for the purpose of the observer's own sexual gratification,
commits unlawful sexual contact. For purposes of this subsection
(1.7), "photograph" includes any photograph, motion picture,
videotape, print, negative, slide, or other mechanically,
electronically, or chemically reproduced visual material.
(2) (a) Unlawful sexual contact is a class 1 misdemeanor and is an
extraordinary risk crime that is subject to the modified sentencing
range specified in section 18-1.3-501 (3).
(b) Notwithstanding the provisions of paragraph (a) of this subsection
(2), unlawful sexual contact is a class 4 felony if the actor compels
the victim to submit by use of such force, intimidation, or threat as
specified in section 18-3-402 (4) (a), (4) (b), or (4) (c) or if the
actor engages in the conduct described in paragraph (g) of subsection
(1) of this section or subsection (1.5) of this section.
(3) If a defendant is convicted of the class 4 felony of unlawful
sexual contact pursuant to paragraph (b) of subsection (2) of this
section, the court shall sentence the defendant in accordance with the
provisions of section 18-1.3-406; except that this subsection (3)
shall not apply if the actor engages in the conduct described in
paragraph (g) of subsection (1) of this section.
18-3-405. SEXUAL ASSAULT ON A CHILD
====================================
(1) Any actor who knowingly subjects another not his or her spouse to
any sexual contact commits sexual assault on a child if the victim is
less than fifteen years of age and the actor is at least four years
older than the victim.
(2) Sexual assault on a child is a class 4 felony, but it is a class 3 felony if:
(a) The actor applies force against the victim in order to accomplish
or facilitate sexual contact; or
(b) The actor, in order to accomplish or facilitate sexual contact,
threatens imminent death, serious bodily injury, extreme pain, or
kidnapping against the victim or another person, and the victim
believes that the actor has the present ability to execute the threat;
or
(c) The actor, in order to accomplish or facilitate sexual contact,
threatens retaliation by causing in the future the death or serious
bodily injury, extreme pain, or kidnapping against the victim or
another person, and the victim believes that the actor will execute
the threat; or
(d) The actor commits the offense as a part of a pattern of sexual
abuse as described in subsection (1) of this section. No specific date
or time must be alleged for the pattern of sexual abuse; except that
the acts constituting the pattern of sexual abuse must have been
committed within ten years prior to or at any time after the offense
charged in the information or indictment. The offense charged in the
information or indictment shall constitute one of the incidents of
sexual contact involving a child necessary to form a pattern of sexual
abuse as defined in section 18-3-401 (2.5).
(3) If a defendant is convicted of the class 3 felony of sexual
assault on a child pursuant to paragraphs (a) to (d) of subsection (2)
of this section, the court shall sentence the defendant in accordance
with the provisions of section 18-1.3-406.
18-3-405. SEXUAL ASSAULT ON A CHILD BY ONE IN A POSITION OF TRUST
====================================================================
(1) Any actor who knowingly subjects another not his or her spouse to
any sexual contact commits sexual assault on a child by one in a
position of trust if the victim is a child less than eighteen years of
age and the actor committing the offense is one in a position of trust
with respect to the victim.
(2) Sexual assault on a child by one in a position of trust is a class 3 felony if:
(a) The victim is less than fifteen years of age; or
(b) The actor commits the offense as a part of a pattern of sexual
abuse as described in subsection (1) of this section. No specific date
or time need be alleged for the pattern of sexual abuse; except that
the acts constituting the pattern of sexual abuse must have been
committed within ten years prior to or at any time after the offense
charged in the information or indictment. The offense charged in the
information or indictment shall constitute one of the incidents of
sexual contact involving a child necessary to form a pattern of sexual
abuse as defined in section 18-3-401 (2.5).
(3) Sexual assault on a child by one in a position of trust is a class
4 felony if the victim is fifteen years of age or older but less than
eighteen years of age and the offense is not committed as part of a
pattern of sexual abuse, as described in paragraph (b) of subsection
(2) of this section.
(4) If a defendant is convicted of the class 3 felony of sexual
assault on a child pursuant to paragraph (b) of subsection (2) of this
section, the court shall sentence the defendant in accordance with the
provisions of section 18-1.3-406.
18-3-411. SEX OFFENSES AGAINST CHILDREN- unlawful sexual offense defined
- limitation for commencing proceedings - evidence - statutory privilege.
============================================================================
You might want to refer to this section.
18-3-407. VICTIM'S AND WITNESS'S PRIOR HISTORY - evidentiary hearing -
victim's identity - protective order.
===============================================================================
(1) Evidence of specific instances of the victim's or a witness's
prior or subsequent sexual conduct, opinion evidence of the victim's
or a witness's sexual conduct, and reputation evidence of the victim's
or a witness's sexual conduct may be admissible only at trial and
shall not be admitted in any other proceeding except at a proceeding
pursuant to paragraph (c) of subsection (2) of this section. At trial,
such evidence shall be presumed to be irrelevant except:
(a) Evidence of the victim's or witness' prior or subsequent sexual
conduct with the actor;
(b) Evidence of specific instances of sexual activity showing the
source or origin of semen, pregnancy, disease, or any similar evidence
of sexual intercourse offered for the purpose of showing that the act
or acts charged were or were not committed by the defendant.
(2) In any criminal prosecution under sections 18-3-402 to 18-3-405.5,
18-6-301, 18-6-302, 18-6-403, and 18-6-404, or for attempt or
conspiracy to commit any crime under sections 18-3-402 to 18-3-405.5,
18-6-301, 18-6-302, 18-6-403, and 18-6-404, if evidence, that is not
excepted under subsection (1) of this section, of specific instances
of the victim's or a witness's prior or subsequent sexual conduct, or
opinion evidence of the victim's or a witness's sexual conduct, or
reputation evidence of the victim's or a witness's sexual conduct, or
evidence that the victim or a witness has a history of false reporting
of sexual assaults is to be offered at trial, the following procedure
shall be followed:
(REFER TO WEBSITE AND READ FURTHER IF NECESSARY......)
===
Also refer to "Statutory Rape: A Guide to State Laws and Reporting
Requirements." The Lewin Group. December 15, 2004
Scroll down to Table 1: State Age Requirements:
http://www.lewin.com/NR/rdonlyres/ee6c4ee7ynpckrtikzxdngpdfb2gwmiw6twdlzfdy2blv7eqnt2an4yuzgiv5evzclbaiq3lobnr6e/3068overview.pdf
***********
You have asked:
"Is it possible to sue the accuser for defamation, or any of the
witnesses for the prosecution either before or after the case has gone
to trial (assuming the defendant is found not guilty)?"
While anything is possible, I would urge you to ask the question is -
is it worth it? I have compiled a few general articles concerning
libel and slander, as well as references to a few cases where the
accused have decided to turn the tables on their accusers in cases of
alleged sexual harassment or assault. These cases are in other
jurisdictions and I simply do not have the expertise to advise you in
this matter.
* Your best bet is to consult a local attorney about the viability of
pursuing either civil or criminal defamation charges in Colorado in a
situation concerning false accusation of sexual assault. The section
of the Colorado statutes that deals with "Criminal Libel" has no
specifics concerning such circumstances. To read the statute, click on
Colorado Statutes, click on Criminal Code, click on Miscellaneous
Offenses, and scroll down to "Criminal Libel. (18-13-105)
http://198.187.128.12/colorado/lpext.dll?f=templates&fn=fs-main.htm&2.0
Again, a Colorado attorney would be able to offer the best advise on this matter.
==
For a general overview, please read the following article on "Slander
and Libel." Lawyers.com
http://www.lawyers.com/legal_topics/browse_by_topic/browse_parent/browse_child/content/show_content.php?&articleid=1016441
Excerpts:
"When someone spreads something negative about you, you may wonder if
you have a lawsuit against that person. "Defamation" is a false
statement communicated to someone else that is intended to damage your
reputation or good name. Defamation through writing is called "libel."
Spoken defamation is called "slander."
Libel
------
"To recover against someone who has libeled you, you must prove the
written false statement was:
* "Defamatory," that is, it harmed your reputation (as opposed to being just
offensive or insulting)
* Published to at least one other person
* About you specifically
* Made with the intent to fault you
Slander
--------
"You don?t have to prove actual harm to your reputation to collect
damages for slander if someone says something about you that:
* Affects your business, trade or profession
* Implies you committed a crime
* Leads to the conclusion that you have a loathsome disease
* Suggests that you are somehow sexually impure
* Otherwise, you?ll have to prove you?ve actually been damaged in order to
collect for slanderous behavior.
"Defamation laws vary greatly by state, but are founded on the common
background of the First Amendment to the United States Constitution
(as interpreted by the United States Supreme Court)."
Damages
-------
"If you?ve been defamed, you may receive a money award from a jury, as
well as what?s called "punitive damages" - monetary awards meant to
punish the person defaming you for particularly reprehensible
behavior."
** "If you think you?ve been slandered or libeled, it?s best to
contact a local attorney with experience in defamation law."
==
Also read "Libel."
http://www.criminal-law-lawyer-source.com/terms/libel.html
==
Although this article pertains to an entirely different type of case,
the following exerpt is interesting:
From "Defamation or reputation protection?" Overlawyered. Dec. 16, 2004
http://www.overlawyered.com/sports/
"Winning a defamation case in the United States as a private person is
thankfully and notably difficult. Winning a defamation case as a
public person (someone well known in the relevant community or a
public official) is extremely difficult unless there is an unmitigated
lie, and nearly impossible if the case comes down to one person's word
against another's."
"Often defamation actions are covers -- one person who may have done
something wrong will protest his or her innocence, sue an accuser and
use the pressure of a lawsuit to obtain a retraction of some
sort....."
LAWSUITS BY THE ACCUSED AGAINST THE ACCUSER
============================================
Examples of lawsuits by the accused against the accuser from other jurisdictions:
"In rare turn, Inland priest is suing accuser -- for slander," by
Michael Fisher. The Press Enterprise. 2/14/2005
http://www.opusbonosacerdotii.org/casenews/InrareturnInlandpriestissuingaccuser--forslander.asp
"Saying he was falsely accused of molestation, an Inland priest is
suing his accuser for slander in one of just a handful of defamation
lawsuits to be filed nationwide since the sexual abuse scandal erupted
in the U.S. Roman Catholic Church more than two years ago.
Read further....
==
From "Top Cases: The Best of 2004," by Deborah Elkins. Virginia
Lawyers Weekly. http://www.valawyersweekly.com/2004topcases.cfm
Excerpt:
"Now everybody wants a piece of a defamation action:
"Employees accused of sexual harassment are suing their accuser and
employers (Lomanno v. Black VLW 004-3-068)."
"A government contractor employee accused of sexual assault won a
$75,000 defamation award against the female employee who complained to
police about the alleged assault. In Burgess v. DynCorp. Inc. (VLW
004-8-224), the circuit court judge set aside a jury award against the
prime contractor on a claim of tortious interference with contract,
but let the defamation award against the female employee stand."
==
From" Is $8M enough for being accused of sexual assault."
Overlawyered. Feb. 2005.
http://www.overlawyered.com/archives/001973.html
"In December, Kevin Lindsey, a public school teacher and principal for
thirty years, was arrested and "charged with two counts of child
abuse, two counts of second-degree sex offense and one count of
third-degree sex offense." His name, and the allegations that he had
abused two students in the late 1970s, made headlines in his
community. Three weeks later, the charges were dropped because of a
lack of evidence about the girls' "recovered memories" and everything
went back to normal for Mr. Lindsey. Right? Not quite."
"Though he has been reinstated as the principal of his school after
briefly being reassigned to the district office, one can only imagine
the long-term damage done to his reputation. Now he has filed suit
against the women, asking for $8 million for "malicious prosecution,
defamation and invasion of privacy." (Sara Neufeld, "Principal files
lawsuit against accusers," Baltimore Sun, Feb. 2).
==
Though this article regards sexual harassment, it still lends
credibilty to the option of suing for defamation:
"There is an emerging body of literature that addresses the legal
consequences of false charges of sexual harassment. Often those who
have been falsely accused are considered guilty with people demanding
the ouster of the accused (Hassenpflug and Riggs, 1996; p. 981). This,
in turn, has led alleged harassers to seek legal recourse against
their accusers. Increasingly those educators that have been falsely
accused are seeking legal redress by filing defamation of character,
slander, and libel suits against their accusers."
From "Sexual harassment in higher education," by Keith A. Leitich.
Education, Summer 1999
http://www.findarticles.com/p/articles/mi_qa3673/is_199907/ai_n8864191
==
You might want to read the following overview about Justice and
Judicial Options for Sexual Victimization from the University of Notre
Dame Counseling Center. It mentions the tactic used by many defendents
to countersue for defamation:
From "Self Help: Sexual Victimization - Justice and Judicial Options."
http://www.nd.edu/~ucc/ucc_sexualvictimjudicial.html
"In some cases, the perpetrator opts to go to court and sue their
accuser(s) for defamation of character. Without valid and reliable
evidence, an accusation of this magnitude can lead to a law suit which
in turn can conclude with the victim paying damages to the
perpetrator."
==
One last option you might offer your acquaintance for consideration:
If the former relationship between the victim and the defendant was
founded on any type of love or friendship, is it possible that a
mediator could be brought in to bring both parties together in an
attempt to discuss the situation and avoid a lawsuit? Would the victim
be receptive to such a suggestion? Just a thought.
==
I trust that the information I have provided will help you to
understand the law regarding accusations of sexual assault in
Colorado, and how they might pertain to the situation involving your
acquaintance. At the very least, I hope you walk away with a good base
of knowledge so that you can follow up with a lawyer if you so choose.
I hope this can be resolved in the best interests of both parties involved.
Sincerely,
umiat
Search Strategy
Colorado Criminal Code
Colorado and sexual assault of a minor
suing an accuser of defamation
defamation of character in sexual accusation
Colorado AND defamation suit against accuser |
