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September 2009 Archives

Child Abuse in Colorado, changes in the criminal system

A mom stops by a pharmacy and runs in to get her prescription. She doesn't want to get her child out of the safety seat and get the stroller since she'll be back in 3 minutes. Two parents are arguing loudly in their home in front of their child when a neighbor decides to call the police. A teenager is babysitting his younger sister when his friends come over and offer to smoke marijuana. This happens in front of the little sister. A married couple get intimate in their bedroom and don't realize that their bedroom door is ajar and their child sees them in bed together. What do all of these and a host of other relatively simple situations have in common? The state of Colorado recognizes them all as Child Abuse and they are all crimes that can carry jail sentences, not to mention a permanent criminal record.

Did you know?

Colorado still has some unusual crimes on the books that carry extreme penalties for the conduct they are addressing. For example, Colorado Revised Statute 18-9-115 makes it a Class 3 Felony to "Endanger Public Transportation". What exactly is endangering public transportation? Amongst other things, it means threatening any operator, crew member, attendant, or passenger with death or imminent serious bodily injury or threatening them with a deadly weapon or with words or actions intended to make someone believe you have a deadly weapon. You can also meet the elements of this crime by knowingly or recklessly causing bodily injury to another person on a public conveyance. What exactly is a public conveyance? It's a train, airplane, bus, truck, car, boat, tramway, gondola, lift, elevator, escalator, or other device intended, designed, adapted, and sued for public carriage of persons or property. So if a criminal defendant were to threaten another person by saying he or she had a gun, normally that would be the offense of Menacing, a Class 5 Felony, punishable by up to 1-3 years in the Department of Corrections. But threaten someone on a bus, and then the punishment, if the District Attorney charges this crime of Endangering Public Transportation, is for an F-3 Felony punishable by up to 4-12 years in the Department of Corrections. Normally, if a criminal defendant assaults someone as listed above by "knowingly or recklessly causing bodily injury" that's a Class 1 misdemeanor punishable by up to 2 years in the County Jail. Again, do it on a bus or a plane, and the D.A. could charge a Class 3 Felony. With District Attorneys upping the stakes on criminal filings to get leverage on cases, it's important to know that it sometimes matters more WHERE a criminal defendant commits an alleged crime, than IF he or she committed the crime.

What is the rape shield law?

It's found under Colorado Revised Statute 18-3-407. What the rape shield law means is that, if a criminal defendant is charged with sexual assault, the defense can't bring up the victim's sexual history during the trial. The point of this law is to prevent putting the victim on trial for essentially being promiscuous. It's important to know that there are some exceptions to the general law that prevents this being used in trial. If the prior or subsequent instances of the victim's sexual conduct involve the defendant in the case, then they may be admissible. The reason for this is that generally a sexual relationship with the defendant may be relevant to show whether the victim consented to sex that's currently on trial. The victim's sexual history may also be admissible if it can show the source of physical evidence that is found on the victim or crime scene (to show source or origin of semen, pregnancy, disease, etc.). Finally, sexual history may be introduced if it shows that the victim has a history of false reporting of sexual assaults. In order to introduce any of this type of evidence, however, the defense has to file a motion at least 30 days before trial that specifically states what will be offered any why. The Prosecution then has an opportunity to object. If they do object, an evidentiary hearing must then be held by the Court to determine if the evidence will be admissible at trial. This is one of the few times that the defense has to tip its hand to the prosecution before trial and it's very important that the proper procedure is used. Otherwise, a defendant may find valuable evidence is not coming in at trial and he or she is being wrongfully convicted of a sexual assault.