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The following question comes up often in my law practice.
The answer is YES.
Under Colorado law, a person can be a sex offender for purposes of mandatory sex offender treatment even if the person does not have a conviction of a sex offense.
One way this happens is by a determination that there is an underlying factual basis fora sex offense as established by the court at the time of the plea even though the guilty plea was to another offense and the sex offense was not charged or dismissed.
A deferred judgment or a deferred sentence for any offense with an underlying factual basis of which involves a sex offense will also result in the person being categorized as a sex offender.
There is a also a provision under Colorado law that permits – if a person has a “history of sex offenses,” they can be categorized as a sex offender for purposes of evaluation and treatment.
While Colorado’s Probation Departments consider only prior juvenile adjudications and convictions for purposes of this categorization, the Colorado Department of Corrections will consider allegations that:
(1) Have never been prosecuted in Court,
(2) Charges that were dismissed,
(3) Allegations that have since been denied by the alleged victim,
(4) Charges for which a person has been acquitted for purposes of classification of an inmate as a “sex offender.”
The classification system in the department of corrections spans from S1 to S5, with S5 representing convicted sex offenders and S4 representing persons who are not convicted but for whom sex offender treatment is still recommended.
A person sentenced to the department of corrections for a non-sexual crime may be classified a S4 if there is an underlying factual basis of a sex offense in the crime or if the person has a history of sex offenses or sexually offending behavior which has not resulted in a conviction.
It is important to understand that if a person is sent to prison for a non-sexual crime but has a prior sexual conviction, including misdemeanors and juvenile offenses, s/he will likely be classified a sex offender and recommended to participate in sex offender treatment, even if s/he has previously successfully completed a sex offender treatment program.
The recommendation for treatment is based on what is determined to be continuing risks associated with criminal behavior.
Any unadjudicated (untried) sex offender sentenced to the department of corrections after July 1st, 2009, is entitled to a hearing before a hearing officer with certain due process rights before s/he can be classified as a S4 sex offender.
These unadjudicated sex offenders have the right to appeal this classification to the court if they comply with the necessary timeline. Any person with allegations of sex offending behavior who is not convicted of a sex offense should consult with their attorney if their sentence is to the department of corrections.
A person classified as a S4 is treated identical to a person classified as a S5 for purposes of treatment. Since sex offender treatment emphasizes accountability, only persons that acknowledge committing a sex offense and are willing to work on this problem in treatment are granted participation in treatment.
Persons recommended for sex offender treatment, including both S4’s and S5’s, who do not admit to having committed a sexual offense, are labeled deniers.
A person can be labeled a denier if s/he denies an offense even when s/he was acquitted or when no charges were filed. Persons labeled a denier and persons who refuse to participate in the recommended treatment are ineligible to receive earned time.
A person classified as a S4 that complies with the department of corrections recommendation to participate in sex offender treatment will be required to follow the same SOMB guidelines including no contact with children, victims, or potential victims. Consequently, a person classified as a S4 will be prohibited from seeing and communicating with his or her children. As previously discussed, contact with children may be approved if the offender personally pays for a parental risk assessment and receives a low-risk score.
The Use of the “S-Code” in Colorado
All inmates are programmed at the Denver Reception & Diagnostic Center (DRDC) upon entry into DOC. Each inmate receives a code based on his criminal history on the following Sexual Violence Scale.38 The S-code indicates whether the inmate will be recommended for sex offense specific treatment. S-codes can be modified when new information is obtained on the case.
• S5 – Individuals with past or current felony sexual offense convictions.
• S4 – Individuals whose history indicates sexual assaults or deviance for which they may not have been convicted. These cases often involve plea bargains where the factual basis of the crime involved a sex offense.
• S3 – Incarcerated individuals who have committed sex offenses against staff or inmates, or who have displayed behaviors that indicate sexual abuse directed towards another.
• S2 – Individuals who were arrested/investigated for sexual offenses but have no documented conviction, or individuals who were initially coded S5, S4, or S3 but are not recommended for treatment after review by SOTMP staff.
• S1 – Individuals with no history or indication of sex offense behavior.