In Colorado, it is illegal for an adult (someone 18 or older) to have sex with a minor (someone younger than 15), even if the sex is consensual. Those who break the law have committed statutory rape.
Statutory rape laws are premised on the assumption that minors are incapable of giving informed consent to sexual activities. Their incapacity is written into the statute—hence the term, “statutory” rape. The age of consent can vary among states, and some states differentiate between consensual sex between minors who are close in age (for example, two teenagers of the same age), as opposed to sex between a minor and a much older adult.
Though statutory rape does not require that the prosecutor prove an assault, it is still rape. Of course, rape that does involve force or an assault is illegal in Colorado and prosecuted as forcible rape. Assaults of a sexual nature may also be charged under the state’s assault and battery or child enticement or molestation laws.
Statutory rape is prosecuted under Colorado’s sexual assault laws, and penalties depend on the ages of the defendant and victim, as described below.
Sexual assault occurs when there is penetration (vaginal intercourse, oral or anal sex, or penetration with an object or body part, however slight) between:
If the victim is 14 or younger, the offense is a class 4 felony, punishable by at least two years (and up to six years) in prison, a fine of $2,000 (and up to $500,000), or both. If the victim is 15 or 16, the offense is a class one misdemeanor, which is punishable by a fine of at least $500 (and up to $5,000), at least six months in jail (and up to 18 months in prison), or both. (Co. Rev. Stat. Ann. §§ 18-1.3-401, 18-1.3-501, 18-3-401, 18-3-402 (2018).)
Sexual assault on a child occurs when there is sexual touching (not including penetration), even if the touching is over clothing, when the minor is 14 or younger, and the defendant is at least four years older than the minor. This offense is a class four felony, punishable by a fine of at least $2,000 (and up to $500,000), at least two years (and up to six years) in prison, or both. (Co. Rev. Stat. Ann. §§ 18-1.3-401, 18-1.3-501, 18-3-401, 18-3-405 (2018).)
State law requires that, in addition to the applicable fines and prison time, people convicted of certain sexual crimes (including statutory rape) must register as sex offenders. (Co. Rev. Stat. Ann. §§ 16-22-102, 16-22-103 (2018).)
Defendants charged with statutory rape have the usual defenses available to all criminal defendants, starting with “Someone else committed this crime.” Defendants may also argue that the claimed conduct simply did not take place. One or more of the following defenses may also apply.
Colorado has a marital exemption for statutory rape that allows married people to have consensual sex even if their ages would prohibit it if they were not married. The marriage defense is a remnant of the marital rape exemption. . (Co. Rev. Stat. Ann. §§ 18-3-402, 18-3-405 (2018).)
Minors are legally incapable of giving consent to having sex; so for example, if Jen, a 13-year-old willingly has sex with Tony, her 23-year-old boyfriend, Tony can be charged with rape, since Jen is not legally capable of giving consent in the first place. (There are also “Romeo and Juliet” exceptions, discussed below, for parties who are close in age.)
But if Jen and Tony are married and living in Colorado, Tony need not fear criminal charges for having consensual sex with Jen. This is because Colorado has a marital exemption to the Colorado statutory rape laws.
However, if Tony were to rape Jen (force her to have sex against her will), he would have no protection under the law even if the two are married.
Named after Shakespeare’s young lovers, “Romeo and Juliet” exceptions are intended to prevent serious criminal charges against teenagers who engage in consensual sex with others close to their own age. Colorado’s Romeo and Juliet exemption allows for consensual sex between a minor 14 or younger and a defendant who is three or fewer years older than the minor. There is also an exception for a 15 or 16-year-old minor who has sex with someone who is nine or fewer years older than the minor. (Co. Rev. Stat. Ann. § 18-3-402 (2018).)
Defendants accused of statutory rape often claim that they had no reason to know that their partner was underage. They may argue that the victim herself represented that she was older than she was, and that a reasonable person would have believed her. But in Colorado, even a reasonable mistake as to the victim's age will not be a defense to a charge of statutory rape.
If you are facing a statutory rape charge, consider consulting with an experienced criminal defense attorney who regularly practices in your area. The law can change at any time, and a lawyer can evaluate the strength of the prosecution’s case against you and help develop any defenses that might apply to your case.
A lawyer can often negotiate with the prosecutor for a lesser charge or a reduction in penalties (such as, for example, probation instead of prison time); and will know how prosecutors and judges typically handle cases like yours.
If you are a victim of sexual assault or rape, contact Rape, Abuse & Incest National Network (RAINN) for online help and local resources.
Updated September 24, 2018