In 1855, a 19-year-old woman named Celia was executed by hanging in Missouri. Her crime? She had murdered her owner, a man who purchased her when she was just 14 years old and had been forcing her to be his concubine ever since.
There was no dispute that she had killed him. She had even confessed. But Celia’s defense attorneys boldly argued that Celia was permitted to use deadly force to protect herself from rape, basing their argument on a Missouri statute intended to protect white women. Elsewhere in the South, assault on a slave was considered “trespass,” and because in this case the rapist was also Celia’s owner, he was not able to trespass on his own property.
The defense’s argument failed. Celia was convicted and hanged.
Fast forward one hundred years. Although protection against sexual assault was certainly more robust, not until the 1970s was the idea that a man could rape his wife firmly established in all 50 states.
Largely as a backlash against centuries of historical indifference to the plight of assaulted and abused women and children, the pendulum has swung to the other side. Has it gone too far? I will leave that question for others to answer. But as a criminal law attorney specializing in the defense of sex offenses, I am continually amazed and heartbroken by how uninformed the average citizen is about how truly unforgiving and far-reaching the laws can be in this arena. What is even more concerning is the type of scenarios that fall under the law’s most severe penalties. We live in a state where it is possible that a teenager engaging in fully consensual sexual activity with another teenager could face life in prison.
In Colorado, the law allows for “indeterminate sentencing” for certain sex offenses. What this means, practically speaking, is life in prison. Indeed, life in prison is the penalty individuals face if they are charged with a long list of enumerated “sex crimes” in the Centennial State.
For instance, say you have “Sally,” an 18-year-old senior at Durango High School. Sally is dating “Billy,” a 14-year-old freshman at the same school. Billy and Sally are boyfriend and girlfriend and, because of where their birthdays fall, they are more than four years apart. If Sally and Billy have sexual relations, even if they do not have sexual intercourse, Sally can be charged with and found guilty of sexual assault on a child. This offense carries an indeterminate sentence in Colorado.
If the district attorney elects to bring charges against Sally, she almost certainly can avoid life in prison. What saves many defendants in these types of scenarios is that the prosecutor has the discretion to make an “offer,” or a plea bargain on the case. For most people, this involves a plea of guilty to either a misdemeanor or a felony sex offense. With this “deal” comes the wretched sex-offender label (and all of the registration and stigma that comes with it), months, if not years, of sex-offender treatment, a prohibition from being around anyone younger than 18 (even one’s own children), and myriad other degrading and financially devastating punishments.
The situation is grim for those who do not want to plea bargain their cases. Options for the innocent, or for those who disagree with the punishment, are limited. Taking a case to trial, particularly where “guilt” is not disputed, can carry dreadful consequences. Complicating matters is the fact that constitutional protections in this area have been seriously eroded by “rape shield” and “child hearsay” statutes, which often allow otherwise prohibited evidence to be admissible against the accused should the case go before a jury. The result is that hundreds of litigants are forced into plea agreements that label them as sex offenders, and sentence them accordingly.
Sex offenses do not require force. Sex offenses do not require penetration, or even intrusion. Sex offenses can exist even in completely consensual relationships between teenagers. “Rape” is not a word that exists within any Colorado sex-assault statute.
Another commonly held misconception is that the judge has any control over the matter. Although in some situations a judge has the authority to decide among different sentencing options, for the most part, it is the prosecutor who drives the train. He or she decides what to charge, what to pursue and what plea offer to extend.
Broadly sweeping sex-offender laws are archaic, outdated, and they are not driven by evidence-based practices. The merciless realities of current sex offender legislation demonstrate the dire need for reform in this area. At the least, Coloradans should be informed of how harsh, unforgiving and incongruent these laws are.
In our quest to protect those who need protection (a worthwhile goal), sex-offense laws have become, at times, a draconian hodgepodge that often deny common sense and human nature.
Becky Briggs is a Durango attorney specializing in criminal defense. Reach her at (970) 403-1151 or by email at [email protected]