Consent Laws
Colorado

“Consent” means cooperation in act or attitude pursuant to an exercise of free will and with knowledge of the nature of the act. A current or previous relationship is not sufficient to constitute consent. Submission under the influence of fear does not constitute consent. Colorado Revised Statutes Annotated § 18-3-401(1.5).

No.

17 years old, subject to certain close-in-age exemptions (described below). Colorado Revised Statutes Annotated § 18-3-402(1)(d)-(e).

Yes, there are exceptions providing that: (i) children under the age of 15 can consent to sex with a person within 4 years of his or her age, and (ii) persons 15 or 16 years of age can consent to sex with an individual within 10 years of their age:

• The following constitutes Sexual Assault (Colorado Revised Statutes Annotated § 18-3-402(1)(d)-(e)):
• Any actor who knowingly inflicts sexual intrusion or sexual penetration on a victim if:
• At the time of the commission of the act, the victim is less than fifteen years of age and the actor is at least four years older than the victim and is not the spouse of the victim.
• At the time of the commission of the act, the victim is at least fifteen years of age but less than seventeen years of age and the actor is at least ten years older than the victim and is not the spouse of the victim.
• The following constitutes Sexual Assault on a Child (Colorado Revised Statutes Annotated § 18-3-405(1)):
  • Any actor who knowingly subjects another person that is not his or her spouse to any sexual contact commits sexual assault on a child if the victim is less than fifteen years of age and the actor is at least four years older than the victim.

No.

Yes, the actor may be guilty of sexual assault and/or unlawful sexual contact when the actor knows that the victim is incapable of appraising the nature of the victim’s conduct. Colorado Revised Statutes Annotated §§ 18-3-402(1)(b); 18-3-404(1)(b).

Yes, the actor may be guilty of sexual assault and/or unlawful sexual contact when the victim is “physically helpless” and the actor knows the victim is physically helpless and the victim has not consented. Colorado Revised Statutes Annotated §§ 18-3-402(1)(h); 18-3-404(1)(c).

“Physically helpless” means unconscious, asleep, or otherwise unable to indicate willingness to act. Colorado Revised Statutes Annotated § 18-3-401(3).

Yes, unconsciousness falls within the definition of “physically helpless” and therefore the actor may be guilty of sexual assault and/or unlawful sexual contact when the victim is unconscious and the actor knows the victim is unconscious and the victim has not consented. Colorado Revised Statutes Annotated § 18-3-401.

In addition, the sexual assault statute prohibiting sexual intrusion or penetration if actor knows that victim is incapable of appraising nature of victim's conduct may extend to victims who are partially asleep.  People v. Platt, 170 P.3d 802 (Colo. App. 2007).

Yes, any actor who knowingly subjects a victim to any sexual contact commits unlawful sexual contact if the actor has substantially impaired the victim’s power to appraise or control the victim’s conduct by employing, without the victim’s consent, any drug, intoxicant, or other means for the purpose of causing submission. Colorado Revised Statutes Annotated § 18-3-404(1)(d).

In addition, in People In Interest of G.B., 433 P.3d 138 (Colo. App. 2018), the court held that evidence that a sexual assault victim was intoxicated during sexual intercourse, and was for that reason incapable of appraising nature of her conduct, was sufficient to support a sexual assault conviction. 

Yes.

• Married spouses:
• There are certain marital exceptions when there is a marital relationship between an actor and a victim where the elements of the unlawful sexual behavior offense specifically excludes a spouse, such as certain age-related sexual assault offenses, sexual assault on a child (victim under the age of fifteen (15) and actor at least four (4) years older than the victim), and sexual assault on a child (victim under the age of eighteen (18)) by a person in a position of trust. Colorado Revised Statutes Annotated §§ 18-3-402; 18-3-405(1); 18-3-405.3(1); 18-3-409.
• In the custody of law enforcement:
• A victim who is in custody of law or detained in a hospital or other institution cannot consent to any sexual intrusion or sexual penetration with a person who has supervisory or disciplinary authority over the victim and uses this position of authority to coerce the victim to submit, unless the act is incident to a lawful search. Colorado Revised Statutes Annotated § 18-3-402(1)(f).
• Therapist and client:
• A client cannot consent to any sexual intrusion, sexual penetration or sexual contact with the client’s psychotherapist. Colorado Revised Statutes Annotated § 18-3-405.5.
• Child and any non-parent person in a position of trust over the child:
• A child cannot consent to sexual contact with a person who is not the child’s spouse and where such person is in a position of trust with respect to the victim. Colorado Revised Statutes Annotated § 18-3-405.3(1).
• One in a “position of trust” includes, but is not limited to, any person who is a parent or acting in the place of a parent and charged with any of a parent’s rights, duties, or responsibilities concerning a child, including a guardian or someone otherwise responsible for the general supervision of a child’s welfare, or a person who is charged with any duty or responsibility for the health, education, welfare, or supervision of a child, including foster care, child care, family care, or institutional care, either independently or through another, no matter how brief, at the time of an unlawful act. Colorado Revised Statutes Annotated § 18-3-401(3.5).

Yes, consent may act as a defense to the elements of certain sex crimes, including:

• causing sexual intrusion or sexual penetration on a victim knowing the victim does not consent (§ 18-3-402(1)(a));
• knowingly subjecting a victim to any sexual contact knowing the victim does not consent (§ 18-3-404(1)(a));
• sexual contact when the victim is physically helpless and has not consented (§ 18-3-404(1)(c)); and
• knowingly subjecting a victim to any sexual contact when the actor has substantially impaired the victim’s power to appraise or control the victim’s conduct by employing, without the victim’s consent, any drug, intoxicant, or other means for the purpose of causing submission (§ 18-3-404(1)(d)). Colorado Revised Statutes Annotated § 18-3-408.5.

Note: In People v. Bertrand, 342 P.3d 582 (Colo. App. 2014), the court held that consent was not a permissible defense to a charge for sexual assault based on defendant’s knowledge that the victim was incapable of appraising her conduct, since victim’s inability to appraise her conduct while defendant engaged in sexual intercourse with her necessarily negated her ability to consent.

No. People v. Vigil, 43 Colo. App. 121, 122, 602 P.2d 884, 885 (1979)