Sexual Assault on a Child by One in a Position of Trust (CRS § 18-3-405.3)

In Colorado, the crime of sexual assault on a child by one in a position of trust occurs when a person

1. has supervision over a child under the age of 18 years and
2. engages in sexual contact with the child.

The law is codified in Colorado Revised Statute § 18-3-405.3.

Examples:

• A priest groping a choir boy outside his underwear
• A pediatrician caressing a patient’s backside
• A middle school teacher fondling a student’s breast

Penalties:

To help you better understand the law, our Denver, Colorado criminal defense lawyers discuss the following re. CRS 18-3-405.3:

• 1. Elements
• 2. “In a Position of Trust”
• 3. Penalties
• 4. Defenses
• 5. Evidence
• Additional Resources

CRS 18-3-405.3 prohibits sexual touching of a child by a teacher, babysitter, or other person of trust.

1. Elements

For you to be convicted of sexual assault on a child by one in a position of trust under Colorado Revised Statute 18-3-405.3, prosecutors must prove beyond a reasonable doubt that:

1. You had authority (“in a position of trust”) over a child under 18; and
2. You touched or fondled the child’s breasts, buttocks, or genital area, or you had the child touch yours; and
3. Your purpose was sexual arousal, gratification, or abuse.

It is not necessary that anyone be naked or that harsh physical force be used. Physical contact or sexual activity through clothing is sufficient.

In short, CRS 18-3-405.3 prohibits exploiting your authority over a child to molest them – or have them fondle you – for sexual purposes.

Note that in most other areas of Colorado law, the term “sexual assault” normally indicates penetrative sex such as sexual intercourse, oral sex, or anal sex. Though under CRS 18-3-405.3, “sexual assault” means non-penetrative groping. In that sense, “sexual assault on a child by one in a position of trust” is the underage equivalent of the Colorado crime of unlawful sexual contact (CRS 18-3-404).¹

2. “In a Position of Trust”

Under Colorado law, you occupy a position of trust concerning a minor whenever you are responsible (in any way and for any amount of time) for the child’s:

• health,
• education,
• welfare, or
• supervision.

Some of the people considered to be in a position of trust include:

• doctors or other health care providers,
• coaches,
• psychotherapists,
• teachers,
• tutors,
• guardians,
• priests, or
• babysitters.

Note that unlike CRS 18-3-405 – Colorado’s regular sex assault on a child law – sexual assault on a child by one in a position of trust applies to all children under 18 years of age, regardless of the difference in age between the minor and the perpetrator.²

The following bubble graphs shows more examples of people considered to be in a “position of trust” to children.

3. Penalties

Basic Criminal Penalties

Sex assault on a minor by one in a position of trust is usually a Colorado class 4 felony when the minor is 15, 16 or 17 years old. The sentence is:

• 2 to 6 years in prison, and/or
• $2,000 to $500,000.

In addition, you face 10 years to life on Sex Offender Intensive Supervision Probation (SOISP).

Child Under 15 or Habitual Sexual Abuse

Sex assault on a minor by one in a position of trust increases to a Colorado class 3 felony if:

• The minor was under 15, or
• The offense was part of a pattern of sexual abuse.

In either of these cases, the penalties for Colorado sex assault on a minor by one in a position of trust can include:

• 4 to 12 years in prison, and/or
• $3,000 to $750,000.

In addition, you face 20 years to life on SOISP. Plus if a pattern of abuse is alleged, there is no statute of limitations on the offense.³

Crime of Violence

Sex assault on a minor is categorized as a Colorado violent crime if, during the commission of the offense:

• you cause some bodily injury, or
• you used threats, intimidation, or force against the victim.

Doing any of these “aggravators” will result in an enhanced mandatory minimum sentence of:

• 5 years if the minor was 15, 16 or 17, or,
• 10 years if the minor was under 15 or there was a pattern of abuse.

Sexual offenses that are violent crimes also carry a maximum penalty of life in prison, regardless of the class of the felony.⁴

Colorado Sex Offender Registration

A child sexual assault conviction requires you to register on the Colorado Bureau of Investigation’s sex offender registry.

If you fail to register as a sex offender, you face class 6 felony charges and penalties of:

• 1 to 1 ½ years in jail, and/or
• A fine of $1,000-$100,000.⁵

Sex assault by a person in a position of trust on a young child, adolescent, or older child under 18 is a felony.

4. Defenses

Here at Colorado Legal Defense Group, we have represented literally thousands of people facing sex crime allegations and have a long track record of getting these cases reduced or dismissed.

In our experience, the best defenses to criminal charges of sexual assault on a minor by one in a position of trust are to show that:

• The touching was accidental.
• You did not touch the minor.
• The minor did not touch you.
• The touching did not involve an intimate part.
• The touching was not for the purpose of sexual arousal or gratification.
• You did not occupy a position of trust with respect to the minor.
• The “victim of child sex abuse” falsely accused you or misconstrued your innocent touching as sexual behavior.
• Law enforcement committed misconduct (such as a police officer coercing a confession).

The vast majority of criminal charges are resolved through plea bargains. Should the case reach trial, the district attorney has the high burden of proving guilt beyond a reasonable doubt.

Child sex abuse victims/survivors may display such behaviors as eating disorders, low self-esteem, self-harm, substance abuse, withdrawal from family members, bedwetting, or other health problems.

5. Evidence

Our Colorado sex crimes lawyers know that innocent people are often accused of unlawful sexual contact with a minor. Usually, it is the child’s word against yours – and children are not the most reliable witnesses.

• Sometimes, they just misinterpret an innocent situation.
• Sometimes, they are used as a weapon between battling adults.

So, although it can be upsetting, like all the best Colorado criminal defense attorneys, we conduct a thorough background check of the accuser and potential witnesses. We do this by:

• Subpoenaing their school, counseling, and medical records;
• Checking their email records and social networking accounts;
• Conducting interviews of friends, family, schoolmates and social media contacts; and
• Running background checks of all available public documents.

As top Denver sex crimes attorney Michael Becker explains:

“People rightly try to teach their children that intimate touching is wrong. But children are impressionable. Sometimes they mistake affection and concern with sex offenses. Also sometimes they are persuaded to lie.  The earlier we come on board, the easier it is for us to uncover improper motives and preserve our client’s good name.”

Additional Resources

• National Sexual Assault Telephone Hotline – RAINN
• Adult Survivors of Child Sexual Abuse – RAINN
• Sexual Assault and Mental Health – Mental Health America
• Post Traumatic Stress Disorder (PTSD) – National Institute of Mental Health
• Child Sexual Abuse Statistics – VictimsOfCrime.org
• National Sexual Violence Resource Center
• Child Abuse Prevention – Colorado Department of Education
• Abused Children’s Fund
• Child Maltreatment – WHO