Is It CO Rape if Both Parties Are Under the Influence?

Is It CO Rape if Both Parties Are Under the Influence?

When it comes to sex in today’s culture, there’s a lot to grasp. There is a large emphasis on consent when it comes to sex, and rightly so. That makes some circumstances that some people may not consider sexual assault a much grayer area than they realize.

There are times when people are unable to legally consent to sexual conduct with another person, but that area is also not as clear as you may think. For example, what happens if someone is intoxicated and says yes to sex – is that legal consent? What if both parties are under the influence?

It’s vital to understand the law surrounding consent and sexual assault in order to keep yourself and your intimate partners safe. Here’s what you need to know about sexual assault and consent in Colorado, particularly in cases where consent may not be given as freely as you may assume.

What Is Sexual Assault in Colorado?

Sexual assault, or rape, occurs when sexual contact is forced on someone by another without their consent. Sometimes it involves violence. Sometimes it occurs when the person cannot freely give their consent – like when they’re unconscious or mentally disabled.

Sexual assault can also occur when someone is threatened or coerced into participating in sexual activity that they do not want to take part in. They feel they have no choice out of fear for their safety or even their lives.

Sexual assault requires that there be an intrusion or sexual penetration. That can occur through vaginal intercourse, anal sex, fingering, oral sex, anilingus, and penetration with a foreign object.

Sexual assault is a felony that can have an indeterminate sentence. This means that if you were charged with a Class 4 Felony Sexual Assault and were sentenced to probation, it would be for a minimum of 10 years up to the rest of your life. If you were sentenced to prison, it would be for a minimum of 2 years up to the rest of your life.  Class 3 Felony Sexual Assaults have a 20 to life probationary period or an 8 to life prison sentence. The person found guilty of sexual assault will also have to register as a sex offender in Colorado. This punishment can impact where they live, work, or even whether they can go to public parks or schools.

What Is Consent in Colorado?

In Colorado, the age of consent is not nearly and straightforward as it may seem. Consent depends on both the age of the alleged victim and the alleged perpetrator. If the alleged victim is 14 years old or under, they cannot consent to sex with someone who is more than 4 years older than they are to the day. If the alleged victim is 15 or 16, consent is a defense if the alleged perpetrator is less than 10 years older than the alleged victim. The full age of consent in Colorado is 17. However, to throw one last final wrench into the discussion about consent, anyone under the age of 18 cannot consent to sex with anyone who is in a position of trust over them.  That’s someone like a teacher, a coach, or a boss at work.

But it’s not just age that matters when it comes to consent.

The laws in Colorado also seek to protect someone who is incapacitated and unable to give consent. That may happen, because they’ve had too much to drink or have been drugged. A person who is asleep is also unable to give appropriate consent.

In any circumstance in which someone is not able to make a reasonable judgment about having sex with another person, they are not considered capable of giving legal consent.

This means that having sex with someone who is intoxicated, even if they say yes, it may not be considered valid. Their mental state is seen by the law as impaired and unable to make those reasonable judgments that are so crucial in freely given consent.  Along with that there also has to be a knowledge requirement where the alleged perpetrator has reason to believe the alleged victim was too impaired to give consent.

What If Both Parties are Intoxicated?

What If Both Parties are Intoxicated?

While the law is very clear about sex between intoxicated and sober people, it’s not so clear when talking about both parties being under the influence. The truth is that laws surrounding consent are in place to help prevent the exploitation of those who are unable to make good judgment calls for one reason or another.

No matter if you are sober or intoxicated, you are always responsible for your actions. So, if you initiate sex with someone while intoxicated, and they’re intoxicated, too, you can still be charged with sexual assault.

About the Author:

Andrew Bryant is a well-respected Colorado Springs criminal attorney who has been practicing in the area for years. A Colorado native, he returned to the home he loves after graduating from the University of Kentucky College of Law. Now, he uses the knowledge he gained as an El Paso County District Attorney to fight tirelessly for his clients’ rights. He is AV-Preeminent rated, has been recognized for his work by The National Trial Lawyers, and has been named to Best of the Springs lists by The Gazette for years.