First - Here is a Brief Review of How a Felony Criminal Case in
Colorado Proceeds in the Colorado Courts:
--An arrest is made (an arrest warrant or a summons is issued).
--The person is charged.
--There is an advisement/bond return hearing (what happened in People
v. Bryant on Aug. 6, 2003). This is where the person is advised of
what charges, if any, have been filed.
--Preliminary hearing (will happen Oct. 9). 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 which 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.
--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, future
court dates are then scheduled which may include motions 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 conferences (where the parties and the court assess
whether the case will be proceeding to trial) and to handle any pretrial
procedural matters and the trial.
--A Motion hearings; this is an evidentiary hearing for the judge
to determine various legal and evidentiary issues in a case
--A felony jury trial will have 12 people on the jury and maybe
an alternate or 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.
Colorado Law regarding sexual assault
is found in the Colorado Revised Statutes,
C.R.S. 18-3-402.
C.R.S. 18-3-402 prohibits sexual assault.
The following comes from the Boulder County Bar Association Media
Guide:
The statute provides that a person commits sexual assault if the
person knowingly inflicts sexual intrusion or penetration on a victim
if
a) the person causes the victim to submit by means of sufficient
consequence reasonably calculated to cause submission against the
victim's will or
b) the person knows that the victim is incapable of appraising what
the perpetrator is doing or
c) the person knows that the victim erroneously believes the person
is the victim's spouse or
d) 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
e) at the time of the commission of the act the victim is at least
15 but less than 17 or
f) the person has authority over the victim and uses his position
of authority to coerce the victim or
g) 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, a) the person
causes submission of the victim by the actual application of physical
force or b) the person causes submission of the victim by threat
of imminent death or serious bodily injury or c) the person causes
submission by threatening retaliation that the victim reasonably
believes the person can execute or d) the person has substantially
impaired the victim's power to understand or control the person's
conduct by using drugs or other means or e) the victim is physically
helpless and the person knows the victim is physically helpless and
has not consented or f) the sexual assault of the person is physically
aided or abetted by one or more other persons or g) bodily injury,
or by a deadly weapon or a simulate 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 is 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.
Charges and the 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."
Can He Be Sentenced 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)
Can He Be Sentenced to Prison?
Yes. (It is 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 a jury could return with
-- if they decide Mr. Bryant is guilty, but not of a class three
felony sexual assault.
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 . . ."
Can He Go to 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)
Can He Be Sentenced To Probation?
Yes.
If in Prison, When Can He Be Reviewed For Parole?
Upon serving the minimum term of his sentence.
What Is One Mandatory Requirement for Parole?
Completion of Sex Offender Treatment as outlined in the Chart Entitled "Sex
Offender Probationary Terms"
What Is The Parole Term:
Ten years to Life. (10 to Life)
Register as a Sex Offender?
Yes. For Life.
or
Unlawful Sexual Contact Class 1 Misdemeanor C.R.S. § 18-3-404(1)(a)
Legal Definition of Unlawful Sexual Contact:
"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."
C.R.S. § 18-3-401(4) Definition of Sexual Contact as Applied in this Case:
"the knowing touching of the victim's intimate parts by the actor, 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 of that
sexual contact is for the purposes of sexual arousal, gratification or abuse.
C.R.S. § 18-3-401(2) Definition of Intimate Parts
"means the external genitalia or the perineum or the anus or the buttocks
or the pubes or the breast of any person."
Can He Go to Prison?
No.
Can He Go To Jail?
Yes.
Is Jail Mandatory?
No.
If Jailed, What is the Jail Term?
Six months to two years.
Can He Be Put on Probation?
Yes.
How Long is the Probation Term?
Usually up to two years, but may be longer.
Register as a Sex Offender?
Yes, for at least term of probation, plus five years.
What type of Probation?
Intensive supervision, sexual offender probation. See Chart outlining Colorado
Sex Offender Probationary Terms.
It sets out that there's the presumption of irrelevance of reputation,
or opinion evidence or specific instances of a victim's prior or
subsequent sexual conduct unless it involves evidence having to do
with same defendant or evidence having to do with the source of an
injury, bodily fluid, etc. If the defense wants to introduce such
evidence, they have to file a motion and affidavit setting forth
the evidence they want to introduce and the court may conduct a hearing
outside the presence of the jury.
Definition of consent in C.R.S. 18-3-401 (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.
Sentencing
If the jury comes back with a guilty verdict, it is totally up
to the judge as to what the sentence should be. Sentencing would
be done in another phase. The judge is going to base his/her decision
on a pre-sentence investigation report (which will include person’s
criminal history, description of circumstances of the case, victim
impact statements, etc.) and a sex offender evaluation. If a person
is found guilty, the judge must decide whether to place the person
on probation or send that person to prison.
Terms of a Colorado Sex Offender
If a person is judged guilty and the judge decides to put him on
probation, here are the terms for a Colorado sex offender:
The Colorado Legislature amended the sexual offense statutes to
reflect what is now known as indeterminate sentencing, which requires
that most - not all - felony sexual offenders face a life on probation
or a life sentence to prison. C.R.S. § 18-1.3-1004.
Probationary terms
If the individual is not sentenced to prison, the sexual offender
probationary terms are:
• Registration as a sexual offender for the remainder of the
defendant's natural life. Defendant must re-register every 90 days
from the date he received notice of his obligation to register. C.R.S. § 16-22-108.
(For most felonies.)
• Forced to participate in the Sexual Offender Intensive Supervision
Probation. C.R.S. § 18-1.3-1004(2)(a) (for all sexual offenses.)
• Terms of the sexual offender treatment "Guidelines" created
by the Colorado Sexual Offender Management Board, include the following
(this is not exhaustive):
• Participate in treatment which requires masturbating into
a tape for review by the treatment provider. If offender does not
comply, probation is revoked and offender can face sentence to prison
and, if so, will be an indeterminate life sentence.
• Take a plethysmograph (genital monitoring) to "evaluate" sexual
deviancy.
• Take regular polygraphs regarding all sexual history, including
reading pornography.
• Offender will not be able to have any contact with his children,
or any other children, even if the victim does not live in the house
or the victim is not a family member. This includes no letter writing,
pictures, or telephone conversations with any children (including
offender's own children).
• Offender can have visitation with children if the treatment
provider and probation officer agree that
(i) sexual deviant impulses are manageable;
(ii) the offender accepts full responsibility for the act with no
differences between his story and the victim's;
(iii) the offender has disclosed is deviant acts to all necessary
others; and the offender has passed all polygraphs.
• Includes daily contact between sex offender and the probation
officer.
•
Monitored curfew.
•
Home visitation.
•
Employment visitation.
•
Can be ordered to a residential community corrections program for
a minimum term specified by the court.
When does probation end realistically?
For a Class 4 Felony: After 10 years, the court can review whether
the sex offender has successfully progressed in treatment; if not,
the court shall review the denial at least once every three years
until the defendant is successful for discharge.
For a Class 3 Felony: After 20 years, the court can do the same
as stated above.
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