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COLORADO

COLORADO REVISED STATUTES
[This document reflects changes passed at the Second Regular Session and First Extraordinary Session
of the Sixty-Eighth General Assembly of the State of Colorado (2012)]

TITLE 18. CRIMINAL CODE
ARTICLE 7. OFFENSES RELATING TO MORALS
PART 3. PUBLIC INDECENCY
C.R.S. 18-7-301 (2012)

18-7-301. Public indecency

(1) Any person who performs any of the following in a public place or where the conduct may reasonably be expected to be viewed by members of the public commits public indecency:

     (a) An act of sexual intercourse; or

     (b) (Deleted by amendment, L. 2010, (HB 10-1334), ch. 359, p. 1707, 1, effective August 11, 2010.)

     (c) A lewd exposure of an intimate part as defined by section 18-3-401 (2) of the body, not including the genitals, done with intent to arouse or to satisfy the sexual desire of any person; or

     (d) A lewd fondling or caress of the body of another person; or

     (e) A knowing exposure of the person's genitals to the view of a person under circumstances in which such conduct is likely to cause affront or alarm to the other person.

(2) (a) Except as otherwise provided in paragraph (b) of this subsection (2), public indecency is a class 1 petty offense.

     (b) Public indecency as described in paragraph (e) of subsection (1) of this section is a class 1 misdemeanor if the violation is committed subsequent to a conviction for a violation of paragraph (e) of subsection (1) of this section or for a violation of a comparable  offense in any other state or in the United States, or for a violation  of a comparable municipal ordinance.

(3) (Deleted by amendment, L. 2010, (HB 10-1334), ch. 359, p. 1707, 1, effective August 11, 2010.)

HISTORY: Source:. L. 71: R&RE, p. 453, 1. C.R.S. 1963: 40-7-301.L. 2008: (1)(d) amended and (1)(e) and (3) added, p. 1716, 1, 2, effective  July 1.L. 2010: Entire section amended, (HB 10-1334), ch. 359, p. 1707, 1, effective August 11.

Editor's note: This title was numbered as chapter 40, C.R.S. 1963. The  substantive provisions of this title were repealed and reenacted in  1971, resulting in the addition, relocation, and elimination of sections as well as subject matter. For amendments to this title prior to 1971,  consult the Colorado statutory research explanatory note beginning on page vii in the front of this volume. For a detailed comparison of this title, see the comparative tables located in the back of the index.

Editor's note: This title was repealed and reenacted in 1971. For historical  information concerning the repeal and reenactment, see the editor's note following the title heading.

ANNOTATION

The plain language of this offense reflects the general assembly's intent  to make public indecency a strict liability crime without a culpable mental state. Because this section makes it a crime to perform any of  the stated acts where the conduct may reasonably be expected to be viewed by members of the public, it does not matter whether the  defendant knew he was in a public place. The objective standard depends  on what a reasonable person in the defendant's position should have  known. Therefore, the trial court did not err in rejecting a jury instruction that would have required the jury to find the defendant knew he was in a public place. People v. Hoskay, 87 P.3d 194 (Colo. App.  2003).

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C.R.S. 18-7-302 (2012)

18-7-302. Indecent exposure

(1) A person commits indecent exposure:

     (a) If he or she knowingly exposes his or her genitals to the view of any person under circumstances in which such conduct is likely to cause affront or alarm to the other person with the intent to arouse or to satisfy the sexual desire of any person;

     (b) If he or she knowingly performs an act of masturbation in a manner which exposes the act to the view of any person under circumstances in  which such conduct is likely to cause affront or alarm to the other person.

(2) (a) (Deleted by amendment, L. 2003, p. 1435, 31, effective July 1, 2003.)

     (b) Indecent exposure is a class 1 misdemeanor.

(3) (Deleted by amendment, L. 2002, p. 1587, 21, effective July 1, 2002.)

(4) Indecent exposure is a class 6 felony if the violation is committed subsequent to two prior convictions of a violation of this section or of a violation of a comparable offense in any other state or in the United States, or of a violation of a comparable municipal ordinance.

(5) For purposes of this section, "masturbation" means the real or simulated touching, rubbing, or otherwise stimulating of a person's own genitals or pubic area for the purpose of sexual gratification or arousal of the person, regardless of whether the genitals or pubic area is exposed or covered.

HISTORY: Source: L. 72: p. 275, 4. C.R.S. 1963: 40-7-302.L. 77: (1) amended, p. 965, 36, effective July 1.L. 94: (2) amended and (3) and (4)  added, p. 1721, 18, effective July 1.L. 95: (2) to (4) amended, p.  1254, 15, effective June 3.L. 2002: (2)(b), (3), and (4) amended, p. 1587, 21, effective July 1.L. 2003: (2) and (4) amended, p. 1435,   31, effective July 1.L. 2010: (1) amended and (5) added, (HB 10-1334), ch. 359, p. 1708, 2, effective August 11.

ANNOTATION

Subsection (1) provides a sufficiently clear standard of conduct, and application  of the statute of the defendant's conduct did not deprive him of due process of law. People v. Randall, 711 P.2d 689 (Colo. 1985).

Elements of offense not satisfied simply by proof that defendant was naked. A  person must do something that would make his or her genitals visible to another person. People v. Barrus, 232 P.3d 264 (Colo. App. 2009).

Subsection (4) is a sentence enhancer, not a substantive offense. Therefore, the prosecution must prove the prior convictions to the court, not the jury. The burden of proof to the court is preponderance of the evidence. People v. Schreiber, 226 P.3d 1221 (Colo. App. 2009).

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C.R.S. 18-3-401 (2012)

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.

HISTORY: Source:. L. 75: Entire part R&RE, p. 627, 1, effective July 1.L.  83: (4) amended, p. 697, 1, effective March 3; (3.5) added, p. 693,   1, effective June 15.L. 86: (3.5) amended, p. 770, 6 effective July 1.L. 88: (2) amended, p. 712, 17, effective July 1.L. 89: (2.5) added, p. 903, 1, effective June 1.L. 90: (3.5) amended, p. 1028, 15,  effective July 1.L. 92: (1.5) added, p. 322, 3, effective July 1.L. 93: (2) and (4) amended, p. 1731, 15, effective July 1.L. 2000: (1.7)  added, p. 452, 5, effective April 24.L. 2003: (1) amended, p. 1432, 22, effective April 29.

Editor's note: This title was numbered as chapter 40, C.R.S. 1963. The substantive provisions of this title were repealed and reenacted in 1971, resulting in the addition, relocation, and elimination of sections as well as subject matter. For amendments to this title prior to 1971, consult the Colorado statutory research explanatory note beginning on  page vii in the front of this volume. For a detailed comparison of this title, see the comparative tables located in the back of the index.

Editor's note: This title was repealed and reenacted in 1971. For historical information concerning the repeal and reenactment, see the editor's note following the title heading.

Editor's note: This title was repealed and reenacted in 1971, and this part 4  was subsequently repealed and reenacted in 1975, resulting in the  addition, relocation, and elimination of sections as well as subject  matter. For amendments to this part 4 prior to 1975, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume and the editor's note following the title heading. Former C.R.S. section numbers prior to 1975 are shown in editor's notes following those sections that were  relocated.

Cross references: For  introduction of evidence of similar acts or transactions by a defendant prosecuted pursuant to this part 4, see 16-10-301.

Editor's note: This section is similar to former 18-3-409 as it existed prior to 1975.
 
ANNOTATION

Law reviews. For note discussing changes in terminology and classification of offenses of part 4 of this article, and constitutional issues raised thereunder, see 53 Den. L.J. 349 (1976).

Statute not void for vagueness due to definition of "position of trust", since a person of ordinary intelligence could readily understand its meaning and application. People v. Duncan, 33 P.3d 1180 (Colo. App. 2001).

Defendant charged under former section where conduct occurred prior to effective time of amendatory section. Where the criminal conduct charged in a  prosecution for rape occurred prior to 3:50 p.m., July 1, 1975, the time the governor signed the bill amending this section and therefore the effective time of the amendment, the defendant was properly charged with rape under former 18-3-401. People v. Glenn, 200 Colo. 416, 615 P.2d 700 (1980).

Where assault established by evidence, intent to commit rape no defense. Where all the elements of the crime charged (attempt to commit third degree sexual assault) were established by the evidence, the fact that  the defendant's actions might also be construed as evincing an intent to commit rape did not constitute a defense to the charge. People v.  DeLeon, 44 Colo. App. 146, 613 P.2d 639 (1980).

Scientific evidence to support the victim's testimony is not a legal prerequisite to a jury's finding that the defendant is guilty of unlawful sexual behavior. People v. Graham, 678 P.2d 1043 (Colo. App. 1983), cert. denied, 467 U.S. 1216, 104 S. Ct. 2660, 81 L. Ed.2d 366 (1984).

Definition of "sexual contact" construed. People v. Myers, 714 P.2d 513 (Colo. App. 1985); People v. West, 724 P.2d 623 (Colo. 1986); People in Interest of J.A., 733 P.2d 1197 (Colo. 1987).

Definition of the term "sexual contact" is not unconstitutionally vague. People v. West, 724 P.2d 623 (Colo. 1986); People in the Interest of J.A., 733  P.2d 1197 (Colo. 1987); People v. Jensen, 747 P.2d 1247 (Colo. 1987).

The court interpreted "any sexual contact" as an unlimited, nonrestrictive phrase that generally encompasses a multitude of types of sexual  contacts. People v. Woellhaf, 105 P.3d 209 (Colo. 2005).

The distinction of numerous "intimate parts" merely demarcates different intimate parts of the human anatomy and has no effect on the scope of conduct the general assembly sought to criminalize. People v. Woellhaf,  105 P.3d 209 (Colo. 2005).

Ejaculation of semen onto clothing covering another person's intimate parts may constitute "touching" for purposes of establishing "sexual contact". People v. Vinson, 42 P.3d 86 (Colo. App. 2002).

"Consent" and the affirmative defense of consent discussed in People v. Williams, 899 P.2d 306 (Colo. App. 1995).

Jury instruction on "consent" properly provided to jury. The instruction substantially tracked the language of this section. The slight variance  from the statute was only to clarify properly that the definition was applicable to first degree sexual assault. The definition was important to explain to the jury the specialized meaning of "consent" in the context of sexual assault. People v. Pahlavan, 83 P.3d 1138 (Colo. App. 2003).

The term "pattern of sexual abuse" is clearly and unambiguously defined in this section and, therefore, the sentencing enhancement provision of 18-3-405 (2)(c) which incorporates that term is not unconstitutionally vague. People v. Longoria, 862 P.2d 266 (Colo. 1993).

The phrase "two or more incidents of sexual contact" in the definition of  "pattern of sexual abuse" means that the sexual contacts must occur during distinct episodes of sexual assault and be separated by time or an intervening event. People v. Woellhaf, 87 P.3d 142 (Colo. App. 2003), rev'd on other grounds, 105 P.3d 209 (Colo. 2005).

The term "victim" means "intended victim" in the context of a conviction for attempted sexual assault. People v. Buerge, 240 P.3d 363 (Colo. App. 2009).

A defendant can be charged with one pattern count for each underlying substantive count. People v. Bobrik,  87 P.3d 865 (Colo. App. 2003).

Evidence sufficient to establish victim was "physically helpless". Record demonstrated that there was sufficient evidence from which the jury could find that the victim was unable to indicate a willingness to act and therefore "physically helpless" within the statutory definition of that term. There was testimony that the victim was virtually unable to converse and required total care; that she needed assistance in everything she did; that while she could at times respond to a simple yes-or-no question, her answers could be nonsensical or inaccurate; that she was physically incapable of protecting herself against any attack; that she was in a locked facility for her own protection, because she would otherwise wander away; and that the Alzheimer's disease affected her both mentally and physically. People v. Klausner, 74 P.3d 421 (Colo. App. 2003).

Trial court committed  reversible error by refusing defendants' request to instruct the jury on the affirmative defense of consent where the evidence bearing on the possible existence of consent, while not strong, at least satisfied the "scintilla" standard required for an instruction on an affirmative defense. People v. Cruz, 903 P.2d 1198 (Colo. App. 1995).

Because the alleged victim's alleged consent would have "negative[d] an element of the [sexual assault] offense", the trial court was required to instruct the jury on the affirmative defense of consent. People v. Cruz, 903  P.2d 1198 (Colo. App. 1995).

A stepparent is in a position of trust for purposes of this section. People v. Brown, 749 P.2d 436 (Colo. App. 1987); People v. Brown, 761 P.2d 261 (Colo. App. 1988).

Jury could conclude that defendant was "in a position of trust" relative to the victim within the meaning of the applicable statute, where defendant lived in the same residence with the victim and her family and contributed to the household income, the victim spent hours alone with the defendant in his room, the victim was the only child the defendant allowed in his room, and neither the victim's mother nor any other individual intervened during the time that the victim was alone in the defendant's room. People v. Luman, 994 P.2d 432 (Colo. App. 1999) (decided prior to 1990 amendment).

Upon taking the victim to  defendant's home where the two of them were to be alone, defendant  assumed responsibility for the welfare and supervision of the child both en route and in the home. People v. Duncan, 33 P.3d 1180 (Colo. App. 2001).

Defendant in "position of trust" even though he was not performing a specific supervisory duty at the time of the unlawful act. Where victim was pastor's daughter and  defendant previously taught victim in Sunday school, defendant and his  wife babysat for victim and her sister on several occasions, defendant joined victim's family often for dinner, defendant helped victim and her sisters with their school work, defendant chaperoned church trip for victim, and victim's parents allowed victim to go to defendant's house by herself to ride horses, defendant assumed a position of trust through an ongoing and continuous supervisory relationship with victim. Pellman v. People, 252 P.3d 1122 (Colo. 2011).

A "position of trust" for purposes of 18-3-405.3 and subsection (3.5) of this section may be a supervisory position that exists for a "brief" period--a matter of hours or days--or it may  extend over a long relationship. Defendant's discrete acts of supervision were the product of the general position of trust that defendant assumed in relation to victim. Pellman v. People, 252 P.3d 1122 (Colo. 2011).

Any deficiency in  instructions with respect to definition of sexual contact was harmless error when evidence concerning defendant's touching of victim could not reasonably be construed as being for any purpose other than sexual arousal, gratification, or abuse. People in Interest of B.D.S., 739 P.2d 902 (Colo. App. 1987).

Trial court  properly refused to instruct jury concerning consent as an affirmative defense in sexual assault case. Affirmative defense not warranted where  one victim testified that she did not resist or cry out when defendant  assaulted her and another testified that her failure to resist or cry out was motivated by fear and that her submission was induced by fear, People v. Braley, 879 P.2d 410 (Colo. App. 1993).

Applied in People v. Osborn, 42 Colo. App. 376, 599 P.2d 937 (1979); People v. Fierro, 199 Colo. 215, 606 P.2d 1291 (1980); People v. Opson, 632 P.2d 602 (Colo. App. 1980); People v. Reynolds, 638 P.2d 43 (Colo. 1981);  People v. Mack, 638 P.2d 257 (Colo. 1981); People v. Thatcher, 638 P.2d 760 (Colo. 1981); People v. Salazar, 648 P.2d 157 (Colo. App. 1981).


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