July 23, 2019

Colorado Court of Appeals: Child Sexual Assault Victim Cannot Legally Consent to Use of Force During Assault

The Colorado Court of Appeals issued its opinion in People v. Hodge on Thursday, November 1, 2018.

Criminal Law—Sexual Assault—Child—Use of Force Aggravator—Consent.

The prosecution charged Hodge with three counts of sexual assault on a child and alleged that he used force against the victim to accomplish the sexual contact. The use of force aggravator made each charge a class 3 felony under C.R.S. § 18-3-405(1) and (2)(a). The district court dismissed the force aggravators based on its finding that because the 14-year-old victim had consented to the force used (restraints), the prosecution did not establish probable cause for the use of force at the preliminary hearing.

On appeal, the prosecution argued that the district court erred in dismissing the use of force aggravators. A child sexual assault victim cannot legally consent to the use of force during an unlawful sexual act. Therefore, the district court erred in finding that the victim’s agreement to the use of restraints did not constitute the use of force.

The order dismissing the use of force aggravator was reversed, and the case was remanded for reinstatement of the original charges as class 3 felony sexual assault on a child.

Summary provided courtesy of Colorado Lawyer.

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