Unlawful Sexual Contact – Colorado Law – § 18-3-404 CRS

Colorado Revised Statutes § 18-3-404 prohibits the crime of unlawful sexual contact, which is non-consensual sexual touching such as groping or fondling. Unlawful sexual contact is less serious than sexual assault because there is no penetration.

Examples of unlawful sexual contact include:

• You intentionally put your hand on a server’s buttocks in a restaurant because you “like her ass”;
• You rub your crotch against a seated passenger’s breasts on a crowded bus;
• You stuff your co-worker’s hand down your pants.

In some states, unlawful sexual contact is called “sexual battery.” The following table spells out the penalties:

In addition, whether you are convicted of a misdemeanor or a felony, you will have to register as a sex offender.

To help you better understand unlawful sexual contact laws, our Denver, Colorado criminal defense lawyers will discuss the following topics:

• 1. Elements
• 2. Penalties
• 3. Sex Offender Registration
• 4. Defenses
• Additional Resources

Whereas sexual assault involves penetration or intrusion, sexual contact usually involves unwanted touching.

1. Elements

For you to be convicted of unlawful sexual contact under Colorado Revised Statute § 18-3-404, prosecutors must prove beyond a reasonable doubt that – for the purpose of sexual arousal, gratification, or abuse – you either:

• Knowingly touched someone’s intimate parts without their consent; or
• Knowingly caused someone to touch your intimate parts without their consent.

“Intimate parts” comprises a person’s external genitalia, perineum, anus, buttocks, pubes, or breasts. The touching can be through clothing or within the immediate area of the person’s intimate parts.¹

Note that unlawful sexual contact also comprises enticing a child under 18 – for your sexual gratification – to either:

• Expose their intimate parts or
• Have sexual contact with another person.²

This is different than the crime of enticement of a child, which is luring a child under 15 to enter a vehicle, building, room, or secluded place with the intent to commit sexual assault or unlawful sexual contact with that child yourself.

Meaning of “Consent”

For sexual consent to be valid under Colorado law, there must be:

• Cooperation in an act or attitude according to an exercise of free will and
• Knowledge of the nature of the act.

A current or previous relationship is not sufficient to constitute consent. Submission under the influence of fear is also not consent.³

Unlawful Sexual Contact vs. Sexual Assault

Unlike unlawful sexual contact, the crime of sexual assault involves non-consensual “penetration” or “intrusion,” even if it is just slight.⁴ Examples include:

• Sexual intercourse,
• Cunnilingus,
• Fellatio,
• Analingus,
• Anal intercourse,
• Digital sex, or
• Inserting an object or other body part into a person’s genital or anal opening.

Ejaculation is not necessary.⁵

Sex offenses can result in a fine, incarceration, and sex offender registration.

2. Penalties

In Colorado, unlawful sexual contact is usually an extraordinary risk class 1 misdemeanor, carrying:

• Up to 18 months in jail and/or
• A fine of up to $1,000.⁶

Sexual contact becomes an extraordinary risk class 4 felony when the alleged victim is compelled to submit to the sexual contact by:

• Drugging,
• Force,
• Intimidation, or
• Threat.

As an extraordinary risk class 4 felony, unlawful sexual contact carries:

• 2 to 8 years in prison and/or
• A fine of $2,000 to $500,000.⁷

Violent Crime Sentencing

Sexual contact becomes a violent crime in Colorado if during the commission of the offense:

• You used, possessed, or threatened the use of, a deadly weapon, or
• You caused serious bodily injury or death to any other person (other than an accomplice).

Unlawful sexual contact as a violent crime carries a prison term of five years to life in prison.

3. Sex Offender Registry

If you are convicted of (or plead guilty or no contest to) unlawful sexual contact, you will be entered into the Colorado Bureau of Investigation’s sex offender registry.⁸

The entry will include:

• Your name,
• Your address,
• Your date of birth;
• Your photo,
• Your physical description;
• Your crime(s) and date(s) of conviction;
• Your predatory habits (modus operandi), if known; and
• Whether you are considered a “sexually violent predator” (SVP).

What if I do not register?

Failure to register as a sex offender is a Colorado class 6 felony. Penalties include:

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

Can I get off the sex offender registry?

Possibly. Provided you do not commit any other sex crimes, you may petition the court to be removed from the Colorado sex offender registry after 10 years from your complete discharge following your sexual contact sentence.

Can I stay off the sex offender registry in the first place?

At the time of your conviction, you may petition the court not to add you to the registry if:

• You were younger than 18 years of age at the time of the commission of the unlawful sexual contact; and
• You have not been previously charged with unlawful sexual behavior; and
• It is your first offense for misdemeanor unlawful sexual contact; and
• A sex offender evaluation recommends exempting you based on the best interests of both you and the community; and
• The court makes written findings of fact specifying the grounds for granting such an exemption.⁹

4. Defenses

Here at Colorado Legal Defense Group, we have represented literally thousands of people charged with sex crimes such as unlawful sexual contact. In our experience, the following seven defenses have proven very effective with prosecutors, judges, and juries.

1. There was no contact with the alleged victim’s intimate parts,
2. The contact was accidental,
3. The alleged victim consented to the contact,
4. You reasonably did not know the alleged victim did not consent, and their conduct indicated consent,
5. There was a legitimate reason for the contact – for example, you were babysitting a child and were reasonably checking to see if the child was sick or injured,
6. You were not touching the alleged victim for sexual gratification, or
7. Law enforcement coerced your confession.

Legal References: