(1) The applicable test of insanity shall be, and the jury shall be so instructed: "A person who is so diseased or defective in mind at the time of the commission of the act as to be incapable of distinguishing right from wrong with respect to that act is not accountable. But care should be taken not to confuse such mental disease or defect with moral obliquity, mental depravity, or passion growing out of anger, revenge, hatred, or other motives, and kindred evil conditions, for when the act is induced by any of these causes the person is accountable to the law.".
(2) The term "diseased or defective in mind", as used in subsection (1) of this section, does not refer to an abnormality manifested only by repeated criminal or otherwise antisocial conduct.
(3) This section shall apply to offenses committed before July 1, 1995.
Source: L. 72: R&RE, p. 225, § 1. C.R.S. 1963: § 39-8-101. L. 83: Entire section amended, p. 672, § 1, effective July 1. L. 84: (1) amended, p. 490, § 1, effective February 6. L. 95: (3) added, p. 71, § 1, effective July 1.
16-8-101.3. Legislative intent in enacting section 16-8-101.5 and in making conforming amendments. The intent of the general assembly in enacting section 16-8-101.5 and making conforming amendments to sections 16-8-101 to 16-8-104, 16-8-106, 16-8-110, 16- 8-114, 16-8-115, and 16-8-120 in 1995, and in enacting clarifying provisions in this section and sections 16-8-104.5 and 16-8-105.5 and making conforming amendments to sections 16-8-105 and 16-8-107 and sections 18-1-802 and 18-1-803, C.R.S., in 1996, was to combine the defense of not guilty by reason of insanity and the affirmative defense of impaired mental condition into the affirmative defense of not guilty by reason of insanity and to create a unitary process for hearing the issues raised by said affirmative defense to apply to offenses committed on or after July 1, 1995.
Source: L. 96: Entire section added, p. 3, § 1, effective January 31.
16-8-101.5. Insanity defined - offenses committed on and after July 1, 1995 - definitions. (1) The applicable test of insanity shall be:
(a) A person who is so diseased or defective in mind at the time of the commission of the act as to be incapable of distinguishing right from wrong with respect to that act is not accountable; except that care should be taken not to confuse such mental disease or defect with moral obliquity, mental depravity, or passion growing out of anger, revenge, hatred, or other motives and kindred evil conditions, for, when the act is induced by any of these causes, the person is accountable to the law; or
(b) A person who suffered from a condition of mind caused by mental disease or defect that prevented the person from forming a culpable mental state that is an essential element of a crime charged, but care should be taken not to confuse such mental disease or defect with moral obliquity, mental depravity, or passion growing out of anger, revenge, hatred, or other motives and kindred evil conditions because, when the act is induced by any of these causes, the person is accountable to the law.
(2) As used in this section:
(a) "Diseased or defective in mind" does not refer to an abnormality manifested only by repeated criminal or otherwise antisocial conduct. Evidence of knowledge or awareness of the victim's actual or perceived gender, gender identity, gender expression, or sexual orientation shall not constitute inability to distinguish right from wrong.
(b) "Gender identity" and "gender expression" have the same meaning as in section 18- 1-901 (3)(h.5).
(c) "Mental disease or defect" includes only those severely abnormal mental conditions that grossly and demonstrably impair a person's perception or understanding of reality and that are not attributable to the voluntary ingestion of alcohol or any other psychoactive substance but does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.
(d) "Sexual orientation" has the same meaning as in section 18-9-121 (5)(b).
(3) This section shall apply to offenses committed on or after July 1, 1995.
Source: L. 95: Entire section added, p. 71, § 2, effective July 1. L. 2020: (2) amended, (SB 20-221), ch. 279, p. 1365, § 2, effective July 13. L. 2021: IP(2) amended, (SB 21-266), ch. 423, p. 2800, § 14, effective July 2.
Cross references: For the legislative declaration in SB 20-221, see section 1 of chapter 279, Session Laws of Colorado 2020.
Notes of Decisions
Cited in
59
cases (
1 in the last 5 years), 1976–2025 · leading case:
People v. Serravo, 823 P.2d 128 (Colo. 1992).
People v. Serravo, 823 P.2d 128 (Colo. 1992).
· cites it 55× “The phrase in question appears in section 16-8-101, 8A C.R.S. (1986), which defines legal insanity as follows: The applicable test of insanity shall be, and the jury shall be so instructed: “A person who is so diseased or defective in mind at the time of the commission of the…”
Bieber v. People, 856 P.2d 811 (Colo. 1993).
· cites it 16× “Instead, the trial court instructed the jury in accordance with the legal test for insanity set forth in section 16-8-101, 8A C.R.S. (1986), which states in relevant part: A person who is so diseased or defective in mind at the time of the commission of the act as to be…”
Dunlap v. People, 173 P.3d 1054 (Colo. 2007).
· cites it 2× “See § 16-8-101, C.R.S. (2006) (insanity defined).”
People v. Roark, 643 P.2d 756 (Colo. 1982).
· cites it 6× “The ultimate issue at a sanity trial is not whether the defendant committed the acts with which he is charged, but rather, whether he was legally sane under the standards prescribed in section 16-8-101, C.R.S.1973 (1978 Repl.Vol.”
People v. Low, 732 P.2d 622 (Colo. 1987).
· cites it 7× “Section 16-8-101, 8A C.R.S. (1986), provides in pertinent part: (1) The applicable test of insanity shall be, and the jury shall be so instructed: “A person who is so diseased or defective in mind at the time of the commission of the act as to be incapable of distinguishing…”
Neiberger v. Hawkins, 239 F. Supp. 2d 1140 (D. Colo. 2002).
· cites it 17× “’” Motion for Summary Judgment of State Defendants at 10 (quoting Colo.Rev.Stat. § 16-8-101). Yet, in the body of their argument, State Defendants cited only the portions of the statute italicized below.”
Neiberger v. Hawkins, 208 F.R.D. 301 (D. Colo. 2002).
· cites it 4× “” Colo.Rev.Stat. § 16-8-101 provides the legal definition of insanity for criminal proceedings.”
People v. Giles, 557 P.2d 408 (Colo. 1976).
· cites it 6× “A finding of insanity results in commitment where the defendant, because of mental disease or defect at the time of the alleged crime, is *244 unable to distinguish right from wrong with respect to that act, or is unable to choose the right over the wrong.”
People v. Voth, 312 P.3d 144 (Colo. 2013).
· cites it 3× “(2013) (Insanity defined-offenses committed on and after July 1, 1995); § 16-8-101 (Insanity defined-offenses committed before July 1, 1995).”
Hendershott v. People, 653 P.2d 385 (Colo. 1982).
· cites it 3× “Section 16-8-101, C.R.S.1973 (1978 Repl. Vol.”
People v. Quick, 713 P.2d 1282 (Colo. 1986).
· cites it 5× “Section 16-8-101, 8 C.R.S. (1978), provided the following test for insanity: A person who is so diseased or defective in mind at the time of the commission of the act as to be incapable of distinguishing right from wrong with respect to that act, or being able so to distinguish,…”
People v. Chavez, 629 P.2d 1040 (Colo. 1981).
· cites it 3× “The statutory test of insanity is defined in section 16-8-101, C.R.S.1973 (1978 Repl.Vol.”
— Colo. Rev. Stat. § 16-8-101(1) — 17 cases
People v. Serravo, 823 P.2d 128 (Colo. 1992).
“The phrase in question appears in section 16-8-101, 8A C.R.S. (1986), which defines legal insanity as follows: The applicable test of insanity shall be, and the jury shall be so instructed: “A person who is so diseased or defective in mind at the time of the commission of the…”
People v. Low, 732 P.2d 622 (Colo. 1987).
“Section 16-8-101, 8A C.R.S. (1986), provides in pertinent part: (1) The applicable test of insanity shall be, and the jury shall be so instructed: “A person who is so diseased or defective in mind at the time of the commission of the act as to be incapable of distinguishing…”
Bieber v. People, 856 P.2d 811 (Colo. 1993).
“Instead, the trial court instructed the jury in accordance with the legal test for insanity set forth in section 16-8-101, 8A C.R.S. (1986), which states in relevant part: A person who is so diseased or defective in mind at the time of the commission of the act as to be…”
— Colo. Rev. Stat. § 16-8-101(2) — 2 cases
People v. Serravo, 823 P.2d 128 (Colo. 1992).
“The phrase in question appears in section 16-8-101, 8A C.R.S. (1986), which defines legal insanity as follows: The applicable test of insanity shall be, and the jury shall be so instructed: “A person who is so diseased or defective in mind at the time of the commission of the…”
— Colo. Rev. Stat. § 16-8-101(l) — 1 case
People v. Serravo, 823 P.2d 128 (Colo. 1992).
“The phrase in question appears in section 16-8-101, 8A C.R.S. (1986), which defines legal insanity as follows: The applicable test of insanity shall be, and the jury shall be so instructed: “A person who is so diseased or defective in mind at the time of the commission of the…”
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