2021 Colorado Code
Title 18 - Criminal Code
Article 1 - Provisions Applicable to Offenses Generally
Part 5 - Principles of Criminal Culpability
§ 18-1-505. Consent

1. The consent of the victim to conduct charged to constitute an offense or to the result thereof is not a defense unless the consent negatives an element of the offense or precludes the infliction of the harm or evil sought to be prevented by the law defining the offense.
2. When conduct is charged to constitute an offense because it causes or threatens bodily injury, consent to that conduct or to the infliction of that injury is a defense only if the bodily injury consented to or threatened by the conduct consented to is not serious, or the conduct and the injury are reasonably foreseeable hazards of joint participation in a lawful athletic contest or competitive sport, or the consent establishes a justification under sections 18-1-701 to 18-1-707.
3. Unless otherwise provided by this code or by the law defining the offense, assent does not constitute consent if:
   1. It is given by a person who is legally incompetent to authorize the conduct charged to constitute the offense; or
   2. It is given by a person who, by reason of immaturity, behavioral or mental health disorder, or intoxication, is manifestly unable and is known or reasonably should be known by the defendant to be unable to make a reasonable judgment as to the nature or harmfulness of the conduct charged to constitute the offense; or
   3. It is given by a person whose consent is sought to be prevented by the law defining the offense; or
   4. It is induced by force, duress, or deception.

4. Any defense authorized by this section is an affirmative defense.

History. Source: L. 71: R&RE, p. 405, § 1. C.R.S. 1963: § 40-1-605 . L. 81: (2) amended, p. 980, § 1, effective May 13. L. 2017: (3)(b) amended,(SB 17-242), ch. 263, p. 1305, § 138, effective May 25.

For the legislative declaration in SB 17-242, see section 1 of chapter 263, Session Laws of Colorado 2017.

The clause “precludes the infliction of the harm or evil sought to be prevented by the law defining the offense” is ambiguous because it is unclear and subject to alternative constructions. Hotsenpiller v. Morris, 2017 COA 95 , __ P.3d __.

The harm or evil sought to be prevented by a civil protection order (CPO), including enforcing it through criminal charges for a violation of such an order, is not mere contact with the protected person but preventing the societal harms of violence, domestic abuse, and serious harm or death. Hotsenpiller v. Morris, 2017 COA 95 , __ P.3d __.

A protected person simply cannot “consent,” under this section, to another person's violation of a court order. Under the plain language of subsection (3)(c), assent by the victim does not constitute consent if the assent is “given by a person whose consent is sought to be prevented by the law defining the offense”. Hotsenpiller v. Morris, 2017 COA 95 , __ P.3d __.

Subsection (3)(c) is intended to prevent improvident consent, that is, the very objective sought to be prevented by the law defining the offense. Hotsenpiller v. Morris, 2017 COA 95 , __ P.3d __.

The defense of consent of the victim is not available regarding a violation of a permanent CPO. As stated in § 13-14-106 , a CPO is an order of the court and not an order issued by the protected person, and the protected person's consent cannot, as a matter of law, constitute a restrained party's defense to the crime for violation of a CPO. Hotsenpiller v. Morris, 2017 COA 95 , __ P.3d __.

Whether the victim consented to sexual contact is directly relevant to submission. Thus, if the victim consented to having sex with the defendant, the element of submission would be negated because the victim cannot both consent to sexual contact and be made to submit against her will to such contact. People v. Williams, 899 P.2d 306 (Colo. App. 1995).

Trial court committed reversible error by refusing defendants' request to instruct the jury on the affirmative defense of consent where the evidence bearing on the possible existence of consent, while not strong, at least satisfied the “scintilla” standard required for an instruction on an affirmative defense. People v. Cruz, 903 P.2d 1198 (Colo. App. 1995).

Because the alleged victim's alleged consent would have “negative[d] an element of the [sexual assault] offense”, the trial court was required to instruct the jury on the affirmative defense of consent. People v. Cruz, 903 P.2d 1198 (Colo. App. 1995).

This section does not impose a requirement that the jury be instructed on an affirmative defense of consent in a case under the first degree sexual assault statute which itself requires, in effect, that the prosecution prove a lack of consent. People v. Cruz, 923 P.2d 311 (Colo. App. 1996).

Trial court did not err in refusing to give jury instruction defining the affirmative defense of consent where proof of the elements of the charged offense necessarily required disproof of the issues raised by said defense. People v. Bush, 948 P.2d 16 (Colo. App. 1997).