Understanding Consent in Colorado: What You Need to Know

Consent 101: Basic Guide to Consent in Colorado

Consent laws in Colorado are critical because they define what a person may do to or with an individual without committing a crime (or greater crime). Consent laws play an important role in many aspects of law, including in the areas of alcohol and sexual violence. In all cases, the concept of consent has to do with a person’s permission. The legal definition of consent is an agreement between parties for something to happen, but in some cases, such as the context of sexual assault, consent can be a complicated issue. It is necessary to show that the person allegedly harmed did not consent to the action. The basis of consent laws is the idea that a person is not committing a crime if the individual is given permission from another to perform an act. For example, if you have permission to drive a car from a registered owner, it is not illegal for you to do so. On the other hand, if the owner tells you that you cannot use their vehicle, but you do so anyway, it could be viewed as a crime . In the case of an individual accused of rape, it is necessary to show that the alleged victim did not grant consent. The important thing to understand about consent laws in Colorado is that most criminal acts are dependent on whether or not the person performing the offense gained consent from the victim. For example, for rape to occur, the act must be nonconsensual. Consent laws are also important when it comes to the minimum ages for certain purchases. A good example of consent in regard to alcohol is the fact that you cannot purchase alcohol legally until age 21. Therefore, consent laws prohibit a retailer from selling alcohol in Colorado to an individual before hitting the age threshold. Consent is therefore necessary for the sale and distribution of alcohol to comply with Colorado liquor laws. Consent laws are used in a plethora of contexts to explain why an action was or was not legal. When it comes to criminal defense, showing that consent was granted is critical to defending against a sexual assault charge.

The Legal Age of Consent in Colorado

The age of consent for sexual activity in Colorado is 17 years old. Colorado Revised Statute 18-3-402 establishes the age of consent. The full text of the statute is available here.
In most cases, a person under 17 years old is not legally permitted to engage in sexual intercourse. Note that sexual intercourse includes time spent outside a car or other vehicle, so "making out" inside a vehicle with someone under 17 could still be a crime.
There are some exceptions to Colorado’s statutory rape law, including:

– Close-in-age exemptions
– Special rules for those in positions of authority

You can read more about close-in-age exemptions and special rules for those in positions of authority here.

Consent and Medical Procedures in Colorado

In Colorado, consent is a fundamental issue in medical malpractice cases. Consent, as it pertains to medical malpractice, is comprised of two elements: the physician duty to inform the patient of the risks and complications of a procedure, and the requirement that the patient give informed consent for the procedure to go forward. A physician must disclose to the patient any significant risk of harm in a proposed treatment so that the patient can decide whether to go forward with the treatment. A patient who is informed of the risks or complications associated with the proposed treatment may not bring a claim for medical malpractice if the complications occur. In this sense, informed consent is an affirmative defense to what would otherwise be medical negligence. Patients who do not have the capacity to understand the nature and significance of a procedure general cannot give informed consent. For example, minors generally cannot consent to medical care. In Colorado, a minor has the right to informed consent once he or she turns 18 years of age, but normally cannot give consent before that date. As a result, if a minor requires a medical procedure, a parent or guardian must give the consent. An exception exists when the minor consents to a medical procedure without a parent or guardian present-potentially exposing the parent or guardian to liability-if that minor was pregnant at the time, had been married, or was emancipated. Oral informed consent generally suffices under Colorado law. Written informed consent, such as a signed consent form, is not required.

Consent in Sexual Activity

Colorado law states that a person is not capable of giving consent to sexual activity, regardless of his or her age, if the person is: unable to understand the nature of the act; unable to consequently make a rational decision because of an intellectual disability; or temporarily or permanently incapacitated because of drugs, alcohol or a mental disorder.
While consent to sexual activities may be implied from a person’s conduct, the law defines sexual contact and sexual penetration as acts performed with the intent to: (1) cause bodily injury, or sexual humiliation; (2) cause serious bodily injury or sexual humiliation; (3) acquire sexual gratification; (4) harm someone sexually or on purpose for sexual gratification; or (5) prevent someone from making a report or when a person has fraudulently pretended to represent a professional, educational or medical purpose. Consent is the mutual agreement in which both parties agree to the sexual activity. Consent cannot be bolstered by force, intimidation or fear. Consent can be conditioned , therefore it can be revoked at any time during the sexual activity. Consent is valid if the consent has been acquired, among others, from mental impairment, alcohol, fraud, coercion, or threat of force or injury. Sexual contact (with the intent to cause sexual humiliation or bodily injury upon the other person) is: intentional physical contact, either directly or through clothing, between the genitals, anus, breast, inner thigh or the mouth of another. Sexual penetration (intentional intrusion, however slight, including penetration by any object or body part, whether actual or simulated, or causing another person to make penetration by any such object or body part, whether by the use of force or coercion, or without consent) is: an intrusion, however slight, into another person’s mouth, anus or vagina, or the intrusion of another person’s mouth, anus or vagina resulting from the use of body parts or an object, whether through the use of force or coercion, or without consent. This is also known as rape that is often involuntary and may include rape by force or rape by deception.

Recent Legislation and Legal Changes

Amendments to C.R.S. 18-3-404(1.5) became effective on August 10, 2007. Previously, the statute provided that a person eighteen years of age or older was not legally capable of giving consent for sexual contact to someone who is more than four years older and it also created an affirmative defense for the accused that he or she believed the complaining witness to be 18 years of age or older if the accused was less than four years older than the complaining witness.
As of August 10, 2007 C.R.S. 18-3-404(1.5) provides: (1.5) It is a defense that the person against whom the offense is charged is legally incapable of consenting under section 18-3-401.5 only if the actor reasonably believed that the complaining witness was 18 years of age or older, and the actor was less than four years older than the complaining witness at the time of the alleged offense.
Essentially the affirmative defense in the previous statute still exists but the statute does not delineate how the defense can be proven. The schism in the statute is the aforementioned change in the language. A common example of the application of this statute is when a teacher at an elementary school becomes involved in a romantic relationship with a sixteen year old student. The parent of the student wakes up one day to find her daughter’s diary which contains graphic writings about the relationship. The parent reports her suspicions to the appropriate law enforcement agency and the offending teacher is arrested. At trial however the jury hears that the student wanted to have sex with the teacher, and that the sexual relationship was consensual. The teacher testifies that he/she honestly believed that the student was over eighteen and that he/she was only a few months older than the student. Is the teacher guilty of sexual assault? Technically if the law is followed he is not, but the general public will be outraged at such a result. And the jury will likely convict the teacher regardless of the jury’s instruction on the legal requirements of the statute and regardless of the factual findings of the jury.

Legal Remedies and Support Resources

Individuals seeking assistance or further information on consent laws in Colorado can find a variety of legal resources and support services. The Colorado Department of Regulatory Agencies Division of Professions and Occupations (DPO) offers resources for those who wish to file a complaint about a licensed professional. The DPO’s website also provides information about filing a formal grievance with the appropriate licensing board, if necessary.
The state also maintains legal aid services which help individuals who cannot afford traditional legal representation. People seeking assistance with civil legal issues such as family law, consumer law, landlord-tenant disputes, and other legal matters can visit the Colorado Legal Services website to find a local legal aid office or pro bono office. Legal Services provides two benefits: the ability to ask lawyers legal questions for free through "Ask-a-Lawyer," and the opportunity to have a free 20-minute session with a lawyer through "Ask-an-Attorney." People involved in situations where they require free legal advice would be well served by visiting the Colorado Legal Services website.
Locally, The Denver Center for Crime Victim Advocacy (DCCVA) provides support and legal information for those affected by crime. Those requiring assistance can call the DCCVA for referrals , or consult their client services directory. Occurrences of crimes involving consent such as common assaults, unlawful sexual behavior, domestic violence and sexual assault remain a serious issue that often needs the intervention of the law. Reports show that nearly a quarter of sexually active women have experienced sexual assault or attempted sexual assault. As such, DCCVA’s supportive services and legal advice is invaluable for Coloradans affected by crime. Individuals seeking legal advice specific to consent will benefit most from DCCVA’s legal resource guide, where they can review legal resources such as the Victim Rights and Law Enforcement Handbook.
Individuals seeking psychological and emotional support services in cases of consent-related issues should contact their local hospital to arrange a counseling or mental treatment upon reaching safety. Those in need of referral services should call the Rape Crisis Hotline at 303-329-0031. The Safehouse Denver Crisis Center toll free 24-hour hotline at 1-877-862-4828 can also provide advice, which may be inappropriate for certain children or adolescents. Children might find specialized support services through the Boys and Girls Club of Larimer County (970-223-1709), the Children’s Advocacy Center (970-495-1980) or the Larimer Center for Mental Health and Substance Abuse (970-494-4200).