Colorado § 18-6-302 - Aggravated incest.

§ 18-6-302. Aggravated incest.

(1) A person commits aggravated incest when he or she knowingly:

(a) Marries his or her natural child or inflicts sexual penetration or sexual intrusion on or subjects to sexual contact, as defined in section 18-3-401, his or her natural child, stepchild, or child by adoption, but this paragraph (a) shall not apply when the person is legally married to the stepchild or child by adoption. For the purpose of this paragraph (a) only, "child" means a person under twenty-one years of age.

(b) Marries, inflicts sexual penetration or sexual intrusion on, or subjects to sexual contact, as defined in section 18-3-401, a descendant, a brother or sister of the whole or half blood, or an uncle, aunt, nephew, or niece of the whole blood who is under ten years of age.

(2) Aggravated incest is a class 3 felony.

(3) When a person is convicted, pleads nolo contendere, or receives a deferred sentence for a violation of the provisions of this section and the court knows the person is a current or former employee of a school district in this state or holds a license or authorization pursuant to the provisions of article 60.5 of title 22, C.R.S., the court shall report such fact to the department of education.

Source: L. 71: R&RE, p. 448, § 1. C.R.S. 1963: § 40-6-302. L. 77: (1) amended, p. 965, § 35, effective July 1. L. 83: Entire section added, p. 695, § 7, effective June 15. L. 90: (3) added, p. 1026, § 8, effective July 1. L. 2000: (3) amended, p. 1847, § 33, effective August 2.

ANNOTATION

Statute is not unconstitutionally vague as applied to stepchildren of common law marriage. People v. Perez-Rodriguez, 2017 COA 77, 411 P.3d 259.

The "unit of prosecution" for the crime of aggravated incest is the same as for the crime of sexual assault on a child because there is no discernible difference between the language used in subsection (1)(a) of this section and the phrase "any sexual contact" used in § 18-3-405.3. People v. Mintz, 165 P.3d 829 (Colo. App. 2007).

To determine if defendant's actions satisfy more than one unit of prosecution, the court looks at all evidence introduced at trial to determine whether evidence relied upon by jury for conviction supports distinct and separate offenses. Factors to determine distinct offenses include contacts occurring at different locations or times or whether they were the product of new volitional departures. If the acts are not distinct offenses, they merge into a single conviction. People v. Mintz, 165 P.3d 829 (Colo. App. 2007).

Aggravated incest, as defined by this section, constitutes a crime of violence within the meaning of § 4B1.2 of the U.S. sentencing guidelines. United States v. Vigil, 334 F.3d 1215 (10th Cir. 2003).

Victim who identified defendant as her natural father was competent to testify concerning her own parentage. People v. Fierro, 199 Colo. 215, 606 P.2d 1291 (1980).