(1) The consent of the victim to conduct charged to constitute an offense or to the result thereof is not a defense unless the consent negatives an element of the offense or precludes the infliction of the harm or evil sought to be prevented by the law defining the offense.
(2) When conduct is charged to constitute an offense because it causes or threatens bodily injury, consent to that conduct or to the infliction of that injury is a defense only if the bodily injury consented to or threatened by the conduct consented to is not serious, or the conduct and the injury are reasonably foreseeable hazards of joint participation in a lawful athletic contest or competitive sport, or the consent establishes a justification under sections 18- 1-701 to 18-1-707.
(3) Unless otherwise provided by this code or by the law defining the offense, assent does not constitute consent if:
(a) It is given by a person who is legally incompetent to authorize the conduct charged to constitute the offense; or
(b) It is given by a person who, by reason of immaturity, behavioral or mental health disorder, or intoxication, is manifestly unable and is known or reasonably should be known by the defendant to be unable to make a reasonable judgment as to the nature or harmfulness of the conduct charged to constitute the offense; or
(c) It is given by a person whose consent is sought to be prevented by the law defining the offense; or
(d) It is induced by force, duress, or deception.
(4) Any defense authorized by this section is an affirmative defense.
Source: L. 71: R&RE, p. 405, § 1. C.R.S. 1963: § 40-1-605. L. 81: (2) amended, p. 980, § 1, effective May 13. L. 2017: (3)(b) amended, (SB 17-242), ch. 263, p. 1305, § 138, effective May 25.
Cross references: For the legislative declaration in SB 17-242, see section 1 of chapter 263, Session Laws of Colorado 2017.
PART 6 PARTIES TO OFFENSES - ACCOUNTABILITY Law reviews: For article, "Colorado Law Concerning Accomplices and Complicity", see 18 Colo. Law. 2317 (1989); for article, "1992 Criminal Law Legislative Update", see 21 Colo. Law. 2200 (1992).
Notes of Decisions
Cited in
18
cases (
3 in the last 5 years), 1989–2026 · leading case:
People v. Williams, 899 P.2d 306 (Colo. Ct. App. 1995).
People v. Williams, 899 P.2d 306 (Colo. Ct. App. 1995).
· cites it 31× “8B), describes the effect upon criminal culpability that a mistaken belief of fact may have, while § 18-1-505, C.R.S. (1986 Repl.Vol. 8B) describes the circumstances under which the consent of the victim will result in no culpability.”
Platt v. People, 201 P.3d 545 (Colo. 2009).
· cites it 16× “The fact that Platt was charged under subsection (b) rather than subsection (h) affected Platt's trial in three significant ways: (1) the prosecutor was not required to prove the statutory elements that the victim did not consent and that Platt knew the victim did not consent;…”
People v. Martinez, 36 P.3d 154 (Colo. Ct. App. 2001).
· cites it 5× “See § 18-1-505, C.R.S.2000. However, "[the consent of the victim to conduct charged to constitute an offense or to the result thereof is not a defense unless the consent negatives an element of the offense or precludes the infliction of the harm or evil sought to be prevented by…”
People v. Bush, 948 P.2d 16 (Colo. Ct. App. 1997).
· cites it 22× “Section 18-1-505(1), C.R.S. (1986 Repl.Vol.”
People v. Hodge, 2018 COA 155 (Colo. Ct. App. 2018).
· cites it 2× “Sparks, 2018 COA 1, ¶ 13 (explaining that the law does not recognize the child as the initiator of unlawful sexual contact or activity with an adult); see also § 18-1-505(1), C.R.S. 2018 (permitting consent as an affirmative defense only when it “negatives an element of the…”
People v. Nelson, 360 P.3d 175 (Colo. Ct. App. 2014).
· cites it 3× “, specially concurring) (opining that where consent and mistake of fact merely negate an element of the crime charged, they are not truly affirmative defenses, notwithstanding section 18-1-505). But even were we to regard consent and mistake of fact as affirmative defenses under…”
People v. Platt, 170 P.3d 802 (Colo. Ct. App. 2007).
· cites it 4× “See § 18-1-505@8)(d), C.R.S.2006 ("Unless otherwise provided by this code or by the law defining the offense, assent does not constitute consent if .”
Ferguson v. People, 824 P.2d 803 (Colo. 1992).
· cites it 4× “Section 18-1-505(3), 8B C.R.S. (1986), states, in relevant part, as follows: (3) Unless otherwise provided by this code or by the law defining the offense, assent does not constitute consent if: [[Image here]] *812 (c) It is given by a person whose consent is sought to be…”
Rowe v. People, 856 P.2d 486 (Colo. 1993).
· cites it 2× “(1986) (listing when mistake qualifies as an affirmative defense); § 18-1-505, 8B C.R.S. (1986) (listing when consent qualifies as an affirmative defense).”
People v. Cruz, 923 P.2d 311 (Colo. Ct. App. 1996).
· cites it 3× “Here, in arguing that he was entitled to separate jury instructions on the affirmative defense of consent, defendant relies on § 18-1-505(1), C.R.S. (1986 RepLVol. 8B), the general provision on consent, which states that a victim’s consent is not a defense “unless the consent…”
People v. Cruz, 903 P.2d 1198 (Colo. Ct. App. 1995).
· cites it 5× “Section 18-1-505(1), C.R.S. (1986 Repl.Vol.”
People v. Lara, 224 P.3d 388 (Colo. Ct. App. 2009).
“Compare § 18-1-505(1), (4), C.R.S.2008 (consent of the victim is an affirmative defense if it negates an element of the offense), with §§ 18-1-708 to -710, C.”
— Colo. Rev. Stat. § 18-1-505(1) — 12 cases
People v. Williams, 899 P.2d 306 (Colo. Ct. App. 1995).
“8B), describes the effect upon criminal culpability that a mistaken belief of fact may have, while § 18-1-505, C.R.S. (1986 Repl.Vol. 8B) describes the circumstances under which the consent of the victim will result in no culpability.”
Platt v. People, 201 P.3d 545 (Colo. 2009).
“The fact that Platt was charged under subsection (b) rather than subsection (h) affected Platt's trial in three significant ways: (1) the prosecutor was not required to prove the statutory elements that the victim did not consent and that Platt knew the victim did not consent;…”
People v. Hodge, 2018 COA 155 (Colo. Ct. App. 2018).
“Sparks, 2018 COA 1, ¶ 13 (explaining that the law does not recognize the child as the initiator of unlawful sexual contact or activity with an adult); see also § 18-1-505(1), C.R.S. 2018 (permitting consent as an affirmative defense only when it “negatives an element of the…”
People v. Martinez, 36 P.3d 154 (Colo. Ct. App. 2001).
“See § 18-1-505, C.R.S.2000. However, "[the consent of the victim to conduct charged to constitute an offense or to the result thereof is not a defense unless the consent negatives an element of the offense or precludes the infliction of the harm or evil sought to be prevented by…”
People v. Bush, 948 P.2d 16 (Colo. Ct. App. 1997).
“Section 18-1-505(1), C.R.S. (1986 Repl.Vol.”
— Colo. Rev. Stat. § 18-1-505(2) — 3 cases
People v. Williams, 899 P.2d 306 (Colo. Ct. App. 1995).
“8B), describes the effect upon criminal culpability that a mistaken belief of fact may have, while § 18-1-505, C.R.S. (1986 Repl.Vol. 8B) describes the circumstances under which the consent of the victim will result in no culpability.”
— Colo. Rev. Stat. § 18-1-505(3) — 3 cases
Ferguson v. People, 824 P.2d 803 (Colo. 1992).
“Section 18-1-505(3), 8B C.R.S. (1986), states, in relevant part, as follows: (3) Unless otherwise provided by this code or by the law defining the offense, assent does not constitute consent if: [[Image here]] *812 (c) It is given by a person whose consent is sought to be…”
— Colo. Rev. Stat. § 18-1-505(3)(b) — 1 case
— Colo. Rev. Stat. § 18-1-505(3)(d) — 1 case
Platt v. People, 201 P.3d 545 (Colo. 2009).
“The fact that Platt was charged under subsection (b) rather than subsection (h) affected Platt's trial in three significant ways: (1) the prosecutor was not required to prove the statutory elements that the victim did not consent and that Platt knew the victim did not consent;…”
— Colo. Rev. Stat. § 18-1-505(4) — 2 cases
People v. Williams, 899 P.2d 306 (Colo. Ct. App. 1995).
“8B), describes the effect upon criminal culpability that a mistaken belief of fact may have, while § 18-1-505, C.R.S. (1986 Repl.Vol. 8B) describes the circumstances under which the consent of the victim will result in no culpability.”
People v. Bush, 948 P.2d 16 (Colo. Ct. App. 1997).
“Section 18-1-505(1), C.R.S. (1986 Repl.Vol.”
— Colo. Rev. Stat. § 18-1-505(8)(d) — 1 case
Platt v. People, 201 P.3d 545 (Colo. 2009).
“The fact that Platt was charged under subsection (b) rather than subsection (h) affected Platt's trial in three significant ways: (1) the prosecutor was not required to prove the statutory elements that the victim did not consent and that Platt knew the victim did not consent;…”
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