Colorado § 18-1-503.5 - Principles of criminal culpability.

§ 18-1-503.5. Principles of criminal culpability.

(1) If the criminality of conduct depends on a child being younger than eighteen years of age and the child was in fact at least fifteen years of age, it shall be an affirmative defense that the defendant reasonably believed the child to be eighteen years of age or older. This affirmative defense shall not be available if the criminality of conduct depends on the defendant being in a position of trust.

(2) If the criminality of conduct depends on a child's being younger than eighteen years of age and the child was in fact younger than fifteen years of age, there shall be no defense that the defendant reasonably believed the child was eighteen years of age or older.

(3) If the criminality of conduct depends on a child being younger than fifteen years of age, it shall be no defense that the defendant did not know the child's age or that the defendant reasonably believed the child to be fifteen years of age or older.

Source: L. 2001: Entire section added, p. 859, § 6, effective July 1. L. 2007: (1) amended, p. 1687, § 4, effective July 1.

Cross references: For affirmative defenses generally, see §§ 18-1-407, 18-1-710, and 18-1-805.

ANNOTATION

Subsection (1) eliminates the culpable mental state as to age prescribed by § 18-6-403 (3), "knowingly", and replaces it with that of subsection (1), "lack of reasonable belief". People v. Bath, 890 P.2d 269 (Colo. App. 1994).

The affirmative defense created in this section applies to the offense of contributing to the delinquency of a minor under § 18-6-107. But where defendant did not raise this affirmative defense in a manner sufficient to meet the defendant's initial burden, the trial court did not err in refusing to instruct the jury on this affirmative defense. People v. Hastings, 983 P.2d 78 (Colo. App. 1999), aff'd, 19 P.3d 662 (Colo. 2000); People v. Gorman, 983 P.2d 92 (Colo. App. 1999), aff'd, 19 P.3d 662 (Colo. 2000).

Subsection (1), by providing for the affirmative defense of reasonable belief, manifests a clear legislative intent that the culpable mental state of "knowingly" in § 18-6-403 does not apply to the age of the victim. People v. Bath, 890 P.2d 269 (Colo. App. 1994).

Subsection (1) of this section does not apply to offenses charged under § 18-7-407. People v. Houser, 2013 COA 11, 337 P.3d 1238.

Subsection (2) limits an affirmative defense and creates a strict liability crime, both of which are within the constitutional power of the general assembly. People v. Salazar, 920 P.2d 893 (Colo. App. 1996).

By applying subsection (2), the trial court did not relieve the prosecution of its burden to prove essential elements of the offense charged. People v. Salazar, 920 P.2d 893 (Colo. App. 1996).

Legislative history relating to the adoption of subsection (2) and § 18-3-405 (1) demonstrates that the general assembly intended the offense of sexual assault on a child to be a strict liability offense. People v. Salazar, 920 P.2d 893 (Colo. App. 1996).