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Colorado Criminal Sex Crimes Law – Understanding How a Charge of Sexual Exploitation of A Child Can Turn Into A Life Sentence – The Sexually Violent Predator

When Colorado passed the Sex Offender Lifetime Supervision Act (Act) in 1998 – the category of crimes known as determinate sentence so called “economic” sex crimes were NOT placed in the mandatory indeterminate life sentence category.  However, there are provisions that are important to understand.  If, after a Defendant has been evaluated for probation he or she is found to be a Sexually Violent Predator (SVP) that Defendant CAN be sentenced under the lifetime supervision or “indeterminate” sentencing provisions of the Act.

Analysis Taken From a Recent 2011 Colorado Case:

Colorado’s Sex Offender Lifetime Supervision Act (Act), sections 18-1.3-1001 to -1012, C.R.S. 2010, identifies two categories of offenders subject to indeterminate sentencing:

(1) sex offenders who have committed one of the sex offenses enumerated in section 18-1.3-1003(5), C.R.S. 2010, for whom indeterminate sentencing is mandatory pursuant to section 18-1.3-1004(1)(a), C.R.S. 2010;

and

(2) persons who have committed one of the “so-called economic sex crimes” for whom indeterminate sentencing is within the court’s discretion under certain circumstances.

Sexual Exploitation of a child is not one of the enumerated sex offenses subject to mandatory indeterminate sentencing.

But Sexual Exploitation of a Child is subject to the so called “discretionary indeterminate sentencing statute,” section 18- 1.3-1004(4).

The discretionary statute, section 18-1.3-1004(4), provides in pertinent part as follows:

(a) The court may sentence any person pursuant to the provisions of this section if:

(I) The person is convicted of or pleads guilty or nolo contendere to a crime specified in paragraph (b) of this subsection (4);

and

(II) An assessment of the person pursuant to section 16-11.7-104, C.R.S., determines that the person is likely to commit one or more of the offenses specified in section 18-3-414.5(1)(a)(II), under the circumstances described in section 18-3-414.5(1)(a)(III).

(b) The provisions of this subsection (4) shall apply to any person who is convicted of . . .

(II) Sexual exploitation of children, as described in section 18-6-403 . . . .

This statute references section 16-11.7-104, C.R.S. 2010, which is the requirement for sex offense specific evaluations and which provides that:

On and after January 1, 1994, each sex offender who is to be considered for probation shall be required, as a part of the presentence or probation investigation . . . to submit to an evaluation for treatment, an evaluation for risk, procedures required for monitoring of behavior to protect victims and potential victims, and an identification . . . . § 16-11.7-104(1), C.R.S. 2010;

It also references section 18-3-414.5(1)(a)(II) and (1)(a)(III), C.R.S. 2010, which are part of the SVP statute.

Section 18-3-414.5(1)(a)(II) lists the offenses that may give rise to an SVP designation, and section 18-3-414.5(1)(a)(III) sets forth one of the four statutory criteria required for an SVP designation, specifically the criterion that the offender’s victim “was a stranger to the offender or a person with whom the offender established or promoted a relationship primarily for the purpose of sexual victimization.”

Thus, the discretionary indeterminate sentencing statute permits a court to sentence an offender to an indeterminate term only if

(1) he or she is convicted of, or pleads guilty or nolo contendere to, an economic sex crime specified in the statute,

and

(2) an assessment of that offender, pursuant to section 16-11.7-104, determines that he or she is likely to commit an SVP offense against a stranger or against a person with whom a relationship is established or promoted primarily for the purpose of sexual victimization. However, even if these prerequisites are met beyond a reasonable doubt, the decision to impose an indeterminate sentence is committed to the discretion of the court

Therefore there are essentially two prongs to the analysis:

The first prong of the statute in section 18-1.3-1004(4)(a)(I) has been met, is this a crime – such as sexual exploitation of a child, one of the economic sex crimes eligible for an indeterminate sentence under the discretionary statute. See § 18-1.3-1004(4)(b)(II), C.R.S. 2010?

The second prong of the statute  – the prosecution must prove there was an assessment required by section 18-1.3-1004(4)(a)(II) and the Defendant’s mental health sex offense specific evaluation conducted by a Sex Offender Management Board registered sex offender evaluator found that . . . . in the  opinion of the evaluator an based on research supported risk factors, the defendant presents with significant risk to engage in Sexual Assault on a Child and Unlawful Sexual Contact behaviors… that he meets the criteria to be designated a Sexually Violent Predator. The evaluator must complete a Colorado Sexually Violent Predator Assessment Screening Instrument prior to sentencing.


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___________________________
H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
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