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If you are charged with a SEX ASSAULT or any other SEX ASSAULT RELATED OFFENSE in Colorado we can help. Colorado has over 45 separate and distinct sex offenses. A Sex Assault charge is extremely serious. Most Felony Sex Assault crimes in Colorado carry a potential life sentence to be served in the Colorado Department of Corrections.

ATTORNEY PETER B, ALBANI IS ONE OF COLORADO’S PREMIER CRIMINAL DEFENSE ATTORNEYS. MR. ALBANI HAS DEDICATDED HIS LEGAL CAREER TO DEFENDING CLIENTS ACCUSED OF SEX ASSAULT, SEX ASSAULT ON A CHILD, POSITION OF TRUST, PATTERN OF ABUSE, AND OTHER SEX CASES. FOR MORE THAN 30 YEARS MR. ALBANI HAS SUCCESSFULLY DEFENDED HUNDRED OF SEX ASSAULT CASES.  MR. ALBANI DEFENDS ALL FELONY SEX OFFENSES AND ALL MISDEMENAOR SEX OFFENSES. MR. ALBANI REPRESENTS BOTH ADULTS AND JUVENILES.  CALL MR. ALBANI TODAY AT (303) 753-0900.

I am often asked about Colorado’s Rape Shield law. Common questions include the following:

Where do I find the Rape Shield Law?

What is the Rape Shield Law?

What does the Rape Shield Law do?

How does Rape Shield work?

Is the Rape Shield Law fair to defendants accused of Sex Assault?

This article will provide a brief review of Colorado’s Rape Shield Law. This article obviously cannot cover all cases and situations. If a defense attorney represents clients charged with Sex Assault and Sex Assault related offenses in Colorado, the defense attorney must learn as much as possible about Colorado’s Rape Shield Law.

COLORADO’S RAPE SHIELD LAW

COLORADO REVISED STATUTES, § 18-3-407.

HOW DO I FIND THE COLORADO RAPE SHIELD LAW?

Colorado’s Rape Shield Law is found at C.R.S. § 18-3-407. The law was passed by the Colorado State Legislature. This it is a legislative creation. Rape Shield laws were not part of the common law. Colorado’s Rape Shield Law was passed into law in 1975.

WHAT IS THE COLORADO RAPE SHIELD LAW?

 In a nutshell, the Rape Shield Law prohibits a defense lawyer from introducing at trial evidence of a named victim’s “prior or subsequent sexual conduct” to discredit or the named victim’s credibility.

The Rape Shield Law applies to witnesses as well. It is very rare that a defense lawyer will seek to impeach a witness at trial who is not the named victim. Thus this article will look at how the Rape Shield Law applies to victims in a sex assault prosecution.

The Rape Shield Law also prohibits a defense lawyer from introducing “opinion evidence” or “reputation evidence” of a named victim or witness’ prior sexual conduct or subsequent sexual conduct. Thus a defense attorney cannot smear a victim by saying she is disreputable or worse.

WHAT DOES THE RAPE SHIELD LAW DO?

The days are long gone when a defense lawyer could impeach a victim in a sex assault trial by suggesting she was a woman of loose morals or a tramp.

The Rape Shield Law dramatically changes strategies for defending a Client accused of Sexual Assault or Rape. Prior to the passage of the Rape Shield Law, it was common for a defense attorney to introduce evidence that the named victim was of highly immoral character and therefore she willing engaged in consensual intercourse. The Rape Shield law vastly limited that type of defense in a Sex Assault case.

PRESUMPTIONS AGAINST INTRODUCING CERTAIN EVIDENCE

The Rape Shield imposes a presumption that the types of evidence noted above shall be presumed to be irrelevant at a Sex Assault trial.

There are limited exceptions to the presumption that certain evidence is automatically deemed irrelevant:

1…Evidence of the victim’s or witness’ prior or subsequent sexual conduct with the defendant may be relevant and may be admissible.

2…Evidence of specific instances of sexual activity to show the source or origin of semen, pregnancy or disease may be admissible.

3…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 may be admissible.

4…Evidence that the named victim or witness has a previous history of falsely reporting sex assaults may be admissible.  (Notice the term “sex assaults” is plural).

HOW DOES COLORADO’S RAPE SHIELD LAW WORK?

 In a Sex Assault prosecution, before a defense lawyer can bring up the types of evidence noted above that are presumed to be irrelevant the defense lawyer must follow a precise set of procedural rules.

At least 35 days prior to trial, unless for good cause shown the Court allows a later filing, the defense attorney must file a written motion with the Court asking for permission to introduce evidence of the victim’s prior or subsequent sexual conduct, opinion evidence, reputation evidence. A copy of this motion must be served on the District Attorney.

The Rape Shield motion must contain a specific offer of proof stating the precise reasons why the defense attorney seeks to introduce the evidence at trial and why the defense attorney believes such evidence is relevant.

The Rape Shield motion must be accompanied by an affidavit. A lot of courts will allow a verified motion signed by the attorney before a notary public.

The most common grounds for seeking to introduce evidence in a Rape Shield motion looks at evidence that the named victim has a history of making false reports of sexual assaults. (Notice, sexual assaults is plural and means more than one false report). Obviously, if a named victim has a history of making false claims of rape, a defense attorney will want to raise this fact to impeach or discredit the victim. This type of evidence can quickly turn against the named victim and against a prosecutor. Such evidence is not automatically admissible however.

The prosecutor can file a response to the defendant’s motion. If the prosecutor admits the facts stated in defense counsel’s offer of proof, the judge can rule on the issue. If the prosecutor denies the facts stated in defense counsel’s offer of proof, the judge decides whether the facts presented contain sufficient proof to allow a hearing on the issue. Any hearing will be held in camera, which means the hearing is not open to the public. To the extent that the facts are in dispute, the Court may allow examination of the named victim at the hearing.

If the Court finds the evidence and the offer of proof are relevant and material to issues in the Sex Assault prosecution, the Court shall order that the evidence may introduced at trial. The Court can set parameters and limits on the evidence to be admitted, the limited purpose for admission of the evidence and even the types of questions that will be allowed.

A Rape Shield motion and the accompanying affidavit and evidence shall be filed by the Court under seal. The motion and supporting evidence may be unsealed if the Court grants the Rape Shield motion. The Court may grant only part of a Rape Shield motion and then only the limited portion of the motion that is granted may be unsealed. The Court can issue other protective orders prohibiting disclosure of matters contained in a Rape Shield motion. The Court may punish violations of the protective order by contempt of Court.

The Colorado cases that have interpreted the Rape Shield have overwhelming come down in favor of the victim, and against the defendant’s interests. Here are a few cases that have interpreted the Rape Shield Statute.

People v. McKenna, 585 P.2d 275 (Colo. 1978) – The basic purpose behind Colorado’s Rape Shield Law is one of public policy. The law provides rape and sexual assault victims protections from humiliating and embarrassing “fishing expeditions” into their past sexual history and conduct without a preliminary showing that the evidence elicited will be relevant to some pending issue in the case.

People v. Kyle, 111 P.3d 491 (Colo. App. 2004) – The Rape Shield Law reflects the general assembly’s intent to prevent victims of sexual assaults from being subjected to psychological or emotional abuse as the price of cooperating in a sex assault prosecution.

People v. Johnson, 671 P.2d 1017 (Colo. App. 1983) – The Colorado Rape Shield Law is constitutional and does not deny a defendant’s right to confront his accuser. Certain exceptions within the law serve to protect a defendant’s rights.

People v, Prentiss, 172 P.3d 917 (Colo. App. 2006) – To prevail on a rape shield motion, it is essential that the accused provide a proper foundation for the introduction of the evidence of the named victim’s prior sex act.

People v. Martinez, 634 P.2d 26 (Colo. 1981) – Evidence of a specific instance of sexual activity, offered to show the source or origin of semen, is not precluded by the statutory presumption of irrelevance in the Rape Shield statute.       

Fletcher v, People, 179 P.3d 969 (Colo. 2007) – Courts are wary to allow the introduction of a victim’s sexual history in a sex assault trial. Colorado’s Rape Shield law precludes the introduction of much of this type of evidence, deeming it to be presumptively irrelevant. Even evidence falling within an established exception contained in the law is not automatically admissible at trial.

People v. Weiss, 133 P.3d 1180 (Colo. 2006) –  The term “prior or subsequent sexual conduct” contained within Colorado’s Rape Shield law includes prior sex assault reports made by the alleged victim. In order to prevail on an allegation that the named victim has a history of making false claims or reports of sexual assaults, the defendant’s affidavit and offer must proof must show that the alleged victim has made “multiple reports of prior or subsequent sex assaults that were in fact false”. One false report is not enough. A mere allegation that the prior reports are false is insufficient. The defendant must show the reports were “in fact false”.

Is the Colorado Rape Shield Law fair to criminal defendants?

The Colorado Rape Shield Law attempts to strike a balance between a rape victim’s right to privacy, and a defendant’s right to confront his accuser. The public policy behind the Rape Shield Law is sound. A true rape victim should not be smeared and attacked at trial on the basis of her sexual conduct, history or reputation. That said, a defendant has a constitutional right to cross-examine the alleged victim at trial.

In a lot of cases, a Court’s ruling on Rape Shield will fairly strike a balance and allow defense counsel leeway to conduct a thorough cross-examination. In other cases, the Court’s ruling will be manifestly unfair. The Colorado Appellate Courts have interpreted the Rape Shield law very conservatively.

The Rape Shield law clearly favors the named victim and often hurts the accused. A defendant should be advised that it is very rare that a trial Court will grant a Rape Shield motion filed by defense counsel.

ATTORNEY PETER B. ALBAN OF ALBANI LAW LLC DEFENDS ADULTS AND JUVENILES CHARGED WITH SEX ASSAULT. MR. ALBANI DEFENDS ALL SEX ASSAULT CRIMES AND CHARGES. MR. ALBANI HAS A STATEWIDE PRACTICE. MR> ALBANI ROUNTINELY DEFENDS SEX ASSAULT CHARGES IN DENVER, ARAPAHOE COUNTY, DOUGLAS COUNTY, JEFFERSON COUNTY, ADAMS COUNTY, BROOMFIELD COUNTY, BOULDER COUNTY, EL PASO COUNTY, ELBERT COUNTY AND LINCOLN COUNTY. MR. ALBANI HAS OVER 30 YEARS OF EXPEREINCE DEFENDING SEX ASSAULT CASES. CALL MR. ALBANI TODAY AT (303) 753-0900.

Attorneys Note: This web article contains the thoughts and impressions of Attorney Peter Albani. This web page does not provide any specific legal advice or create any Attorney-Client relationship. Criminal law is complicated and the law is subject to change. The article does not provide any promises or guarantees of any kind whatsoever. This article may contain inaccuracies and may become outdated. This article was provided for advertising purposes and to assist with any discussion between a perspective client and Mr. Albani. Every criminal case is unique. If you are charged with a crime, you should speak with an attorney immediately.

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