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A Colorado man was convicted of sexual assault of a child and sexual assault of a child by a person in a position of trust in 2016.

Why?

Because he ordered his 4-year-old foster child to approach him, removed his clothes, and ejaculated into her hands. He then forced the girl to swallow his semen, telling her it was his “milk.” He was sentenced to 20 years to life in prison plus one year in jail.

It’s a horrible, horrible story. According to the letter of the law, though, it’s technically not illegal.

In September 2018, the man’s conviction was overturned by the court of appeals in a 2-1 vote because the evidence at trial did not prove that the man touched the intimate parts of the child, or that he forced the child to touch his intimate parts, which is part of Colorado’s criteria for sexual assault. Under this law, semen is not considered to be an intimate part.

The Colorado Supreme Court declined to hear a challenge to the lower court’s ruling, despite the Court of Appeals noting that his conduct was “reprehensible.”

As a result, Adams County District Attorney Dave Young has urged the Colorado legislature to update the state’s sex crime laws, stating that “Any person who reads the facts of this case would agree that this should be a sexual assault on a child crime and the punishment should fit the crime,” and that “The Colorado legislature should pass new legislation that assures an offender will be held appropriately accountable if something like this happens again.”

The man’s conviction for indecent exposure was upheld. His current incarceration status remains unknown as of the writing.

This tragic case serves as a reminder that Colorado has very specific definitions of sexual assault, and what, exactly, constitutes the offense of sexual assault.

Below, we’re going to cover Colorado’s sexual assault laws and how new legislation to close the loophole is likely to change the legal definition of sexual assault in Colorado.

How Colorado Law Defines Sexual Assault

Colorado’s rape and sexual assault laws are not divided on degree or level, but rather on whether penetration of any kind occurred, or whether the defendant merely had sexual contact with the victim.

Because the laws in their current form are based on what kind of physical act took place, they allow loopholes for non-physical sexual acts such as the one above, which can be just as traumatic to the victim in some cases.

Sexual Assault

Sexual assault is defined as knowingly penetrating or sexually intruding upon the victim by any of the following means:

• Using force, threat of force, or other coercive means to force the victim to consent against his or her will.
• Engaging in sexual activity while claiming to offer a medical treatment, which is inconsistent with reasonable medical practices.
• Committing the above acts on a victim who is incapable of giving consent due to being incapacitated, mentally disabled, or a minor child.
• The victim is detained in a jail, prison, or hospital and the defendant has authority over the victim and uses this authority to coerce the victim.

Unlawful Sexual Contact

Under Colorado law, sexual contact occurs when the defendant knowingly touches the victim’s intimate parts, or makes the victim touch the defendant’s intimate parts. This includes touching intimate parts over clothing if the touching was for the purpose of sexual gratification.

Sexual contact is unlawful when:

• The victim does not consent
• The victim is unconscious or asleep and unable to give consent.
• The victim is detained in a jail, prison, or hospital and the defendant has authority over the victim and uses this authority to coerce the victim.
• The defendant uses drugs to impair the victim.
• The defendant engages in the sexual contact while claiming to offer a medical treatment or exam, but the exam is inconsistent with reasonable medical practices.
• The victim is incapable of giving consent due to being incapacitated, mentally disabled, or a minor child.

Colorado’s current laws are defined as engaging in non-consensual physical sexual contact or penetration with the victim. This allows a loophole for sex acts such as the case above that do not involve sexual contact, but may be just as traumatic to the victim.

New legislation will likely close this loophole, either by specifying sexual secretions to be “intimate parts” or by criminalizing certain sex acts that do not involve contact.

About the Author:

Denver-based criminal defense and DUI attorney Jacob E. Martinez is a knowledgeable and experienced litigator with a record of success providing innovative solutions to clients facing criminal charges of any severity. Mr. Martinez has been designated a Top 100 Trial Lawyer by the National Trial Lawyers and has been awarded both the Avvo Client’s Choice Award and Avvo Top Attorney designation, evidencing his reputation for his exemplary criminal and DUI defense work and high moral standards.