Colorado § 18-3-405.5 - Sexual assault on a client by a psychotherapist - definitions.

§ 18-3-405.5. Sexual assault on a client by a psychotherapist - definitions.

(1) (a) Any actor who knowingly inflicts sexual penetration or sexual intrusion on a victim commits aggravated sexual assault on a client if:

(I) The actor is a psychotherapist and the victim is a client of the psychotherapist; or

(II) The actor is a psychotherapist and the victim is a client and the sexual penetration or intrusion occurred by means of therapeutic deception.

(b) Aggravated sexual assault on a client is a class 4 felony.

(2) (a) Any actor who knowingly subjects a victim to any sexual contact commits sexual assault on a client if:

(I) The actor is a psychotherapist and the victim is a client of the psychotherapist; or

(II) The actor is a psychotherapist and the victim is a client and the sexual contact occurred by means of therapeutic deception.

(b) Sexual assault on a client is a class 1 misdemeanor.

(3) Consent by the client to the sexual penetration, intrusion, or contact shall not constitute a defense to such offense.

(4) As used in this section, unless the context otherwise requires:

(a) "Client" means a person who seeks or receives psychotherapy from a psychotherapist.

(b) "Psychotherapist" means any person who performs or purports to perform psychotherapy, whether the person is licensed or registered by the state pursuant to title 12, C.R.S., or certified by the state pursuant to part 5 of article 1 of title 25, C.R.S.

(c) "Psychotherapy" means the treatment, diagnosis, or counseling in a professional relationship to assist individuals or groups to alleviate behavioral or mental health disorders, understand unconscious or conscious motivation, resolve emotional, relationship, or attitudinal conflicts, or modify behaviors that interfere with effective emotional, social, or intellectual functioning.

(d) "Therapeutic deception" means a representation by a psychotherapist that sexual contact, penetration, or intrusion by the psychotherapist is consistent with or part of the client's treatment.

(5) A person who is convicted on or after July 1, 2013, of sexual assault on a client by a psychotherapist under this section, upon conviction, shall be advised by the court that the person has no right:

(a) To notification of the termination of parental rights and no standing to object to the termination of parental rights for a child conceived as a result of the commission of that offense;

(b) To allocation of parental responsibilities, including parenting time and decision-making responsibilities for a child conceived as a result of the commission of that offense;

(c) Of inheritance from a child conceived as a result of the commission of that offense; and

(d) To notification of or the right to object to the adoption of a child conceived as a result of the commission of that offense.

Source: L. 88: Entire section added, p. 726, § 1, effective July 1. L. 89: (3) amended, p. 831, § 42, effective July 1. L. 2011: IP(4) and (4)(b) amended, (SB 11-187), ch. 285, p. 1327, § 69, effective July 1. L. 2013: (5) added, (SB 13-227), ch. 353, p. 2062, § 10, effective July 1. L. 2017: (4)(c) amended, (SB 17-242), ch. 263, p. 1307, § 141, effective May 25.

Cross references: (1) For the licensing of mental health professionals, see article 245 of title 12.

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

ANNOTATION

Section is not unconstitutionally overbroad. Neither the treating psychotherapist nor the psychotherapy client has a fundamental constitutional right to engage in sexual intercourse with each other during the existence of the psychotherapist-client relationship. Ferguson v. People, 824 P.2d 803 (Colo. 1992).

Although consent is eliminated as a defense, prosecution must still prove mental culpability of the crime. Crime is not a strict liability offense. Ferguson v. People, 824 P.2d 803 (Colo. 1992).