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The Mistake of Age defense is well known to criminal defense lawyers who defend statutory sex crimes that are based on a defendant’s mistaken belief of the age of the alleged victim. Even the most consensual sexual interactions between individuals cannot be defended when the alleged victim falls within a protected class of children who – by virtue of their age alone cannot consent to sexual acts.
This article addresses the law in this area of Colorado Sex Crimes Defense Law.
There are two kinds of Mistake of Age Laws to Study….
In any criminal prosecution under sections 18-7-402 to 18-7-407, it shall be no defense that the defendant did not know the child’s age or that he reasonably believed the child to be eighteen years of age or older.
18-7-402. Soliciting for child prostitution, 18-7-403. Pandering of a child, 18-7-403.5. Procurement of a child, 18-7-404. Keeping a place of child prostitution, 18-7-405. Pimping of a child, 18-7-405.5. Inducement of child prostitution, 18-7-406. Patronizing a prostituted child,
(1) If the criminality of conduct depends on a child being younger than eighteen years of age and the child was in fact at least fifteen years of age, it shall be an affirmative defense that the defendant reasonably believed the child to be eighteen years of age or older. This affirmative defense shall not be available if the criminality of conduct depends on the defendant being in a position of trust.
[HMS – This section one applies to Colorado crimes such as Contributing To The Delinquency of A Minor. The affirmative defense created here – here in this Section one applies to the offense of contributing to the delinquency of a minor under §18-6-107 C.R.S. as long as the defendant properly raises the affirmative defense in the manner outlined by law for the raising of Colorado affirmative defenses.
It is important to note that Subsection (1) eliminates the culpable mental state as to age prescribed by § 18-6-403 (3), “knowingly”, and replaces it with that of subsection (1), “lack of reasonable belief”. [LINK HERE]. Subsection (1) provides for the affirmative defense of reasonable belief and also states a very clear legislative intent that the defendant’s mental state of “knowingly” in §18-6-403 does not apply to the age of the victim.
(2) If the criminality of conduct depends on a child’s being younger than eighteen years of age and the child was in fact younger than fifteen years of age, there shall be no defense that the defendant reasonably believed the child was eighteen years of age or older.
(3) If the criminality of conduct depends on a child being younger than fifteen years of age, it shall be no defense that the defendant did not know the child’s age or that the defendant reasonably believed the child to be fifteen years of age or older.
[HMS – This section takes a much stricter view of the defense of Mistake of Age. In this section – it is NO DEFENSE that the defendant reasonably believed the child to be either less than 18 or less than 15 years of age – depending on the crime charged. Section (2) limits the affirmative defense and creates a strict liability crime.
It is also important to understand that raising an affirmative defense is not difficult – To present an affirmative defense for jury consideration, the defendant must present some credible evidence on the issue involving the claimed defense. Evidence supporting an affirmative defense “may come from any source, even from the prosecution.” The burden on the defendant to produce sufficient evidence is “exceedingly low,” making preclusion of an affirmative defense appropriate only when there is “simply no evidence in the court record]
Strict Liability is defined as “absolute liability or liability without fault.”
“The General Assembly has the authority to create and limit the application of affirmative defenses.
It also plainly has the authority to create crimes and elements of strict liability, especially where necessary to protect children from the acts and decisions of adults.
Examples of Strict Liability – Mistake of Age No Defense
Selling Liquor To A Child – Lack of knowledge of child’s age no defense for selling liquor to an intoxicated minor.
Statutory Rape – the purpose underlying crime of statutory rape is to protect children from the consequences of acts they cannot comprehend; accordingly, §18-3-406(2), C.R.S, makes sexual assault on a child a crime of strict liability as to the element of the victim’s age. Statutory rape is a crime of strict liability as to the age of the victim, and by establishing it as such the legislature has expressed an intention to “protect those who are too unsophisticated to protect themselves);
This is a very complex area of law and is critical to fully understand in Colorado Sexual Assault Criminal Cases.
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H. Michael Steinberg has been a Colorado criminal law specialist attorney for 30 years (as of 2013). For the first 13 years of his career, he was an Arapahoe – Douglas County District Attorney Senior prosecutor. In 1999 he formed his own law firm for the defense of Colorado criminal cases.
In addition to handling tens of thousands of cases in the trial courts of Colorado, he has written hundreds of articles regarding the practice of Colorado criminal law and frequently provides legal analysis on radio and television, appearing on the Fox News Channel, CNN and Various National and Local Newspapers and Radio Stations. Please call him at your convenience at 720-220-2277.
If you have questions about Colorado Sex Crimes Affirmative Defense of Mistake Of Age in the Denver metropolitan area and throughout Colorado, attorney H. Michael Steinberg will be pleased to answer those questions and to provides quality legal representation to those charged in Colorado with adult and juvenile criminal matters.. as regards Colorado Sex Crimes Affirmative Defense of Mistake Of Age.