2021 Colorado Code
Title 18 - Criminal Code
Article 8 - Offenses - Governmental Operations
Part 7 - Victims and Witnesses Protection
§ 18-8-706. Retaliation Against a Witness or Victim
- An individual commits retaliation against a witness or victim if such person uses a threat, act of harassment as defined in section 18-9-111, or act of harm or injury upon any person or property, which action is directed to or committed upon a witness in any criminal or civil proceeding; a victim of any crime; an individual whom the person believes has been or would have been called to testify as a witness in any criminal or civil proceeding or a victim of any crime; a member of the witness' family; a member of the victim's family; an individual in close relationship to the witness or victim; an individual residing in the same household with the witness or victim, as retaliation or retribution against such witness or victim.
- Retaliation against a witness or victim is a class 3 felony.
History. Source: L. 84: Entire part added, p. 502, § 4, effective July 1. L. 92: (1) amended, p. 405, § 20, effective June 3. L. 2003: (1) amended, p. 1434, § 28, effective July 1. L. 2018: (1) amended,(SB 18-169), ch. 162, p. 1127, § 2, effective July 1.
ANNOTATION
Phrase “act of harassment” is unconstitutionally overbroad, and it is stricken from the statute. But the term “threat” is not overbroad. After partial invalidation, this section is not unconstitutionally vague or overbroad. People v. Hickman, 988 P.2d 628 (Colo. 1999).
Although the statute does not expressly prohibit threats delivered to third-party recipients , a person of ordinary intelligence would understand that such conduct is proscribed under the statute. Therefore, the statute is not unconstitutionally vague as applied to defendant. People v. McIntier, 134 P.3d 467 (Colo. App. 2005).
The language of the statutes regarding retaliation against a witness and intimidation of a witness are similar however, this section and § 18-8-704 are factually distinguishable and reasonable grounds exist to support differences in punishment provided for each. One is intimidation of a witness prior to testimony, the other is retaliation in response to testimony given. Therefore they do not violate equal protection. People v. Gardner, 919 P.2d 850 (Colo. App. 1995).
The general assembly may prescribe more severe penalties for conduct it perceives to have more severe consequences, even if the differences are only a matter of degree, so long as the classifications of criminal behavior are based on differences reasonably related to the general purpose of the legislation. People v. Gardner, 919 P.2d 850 (Colo. App. 1995).
Threats to kill or injure a witness in retaliation for the witness's testimony are not protected speech. Threats to injure a potential witness's family, made with the intent of discouraging testimony, are not protected speech. People v. Hickman, 988 P.2d 628 (Colo. 1999); People v. McIntier, 134 P.3d 467 (Colo. App. 2005).
Whether a statement is a “true threat” or “political speech” is a question for the finder of fact. People v. McIntier, 134 P.3d 467 (Colo. App. 2005).
A threat is a statement of purpose or intent to cause injury or harm to the person, property, or rights of another by the commission of an unlawful act. People v. McIntier, 134 P.3d 467 (Colo. App. 2005).
The critical inquiry is whether the statements, viewed in the context in which they were spoken or written, constitute a true threat. People v. McIntier, 134 P.3d 467 (Colo. App. 2005).
A “true threat” is not merely talk or jest and is evaluated by whether those who hear or read the threat reasonably consider that an actual threat has been made. People v. McIntier, 134 P.3d 467 (Colo. App. 2005).
The threat need not be direct. A threat may be contingent or conditional if the contingency itself remains in the control of the person making the threat. People v. McIntier, 134 P.3d 467 (Colo. App. 2005).
The phrase “directed to” means that a threat must be directed toward or made against a person protected by the statute, but nothing in the language of the statute requires that the threat must be directly communicated to or received by the protected person. People v. McIntier, 134 P.3d 467 (Colo. App. 2005).
This statute is a specific intent offense. People v. Hickman, 988 P.2d 628 (Colo. 1999); People v. McIntier, 134 P.3d 467 (Colo. App. 2005).
Statute does not apply to retaliation relating to an individual's involvement in a civil proceeding. The statute refers to a witness to any crime. Although the language is ambiguous, legislative history supports its application to criminal, not civil proceedings. People v. Johnson, 2017 COA 11 , 446 P.3d 826.
The statute does not require proof that defendant intentionally communicated the threat to the witness but only that he made the threat with the specific intent to retaliate or to seek retribution for the witness's involvement in the prior criminal proceedings. People v. McIntier, 134 P.3d 467 (Colo. App. 2005).
