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Sexual Assault / Rape, Incapable of Consent

Nowadays, everyone knows that in sex no means no. But what about sexual encounters where the person does not say no and in fact they may say yes by words or actions, only to later claim that they were under the influence of drugs or alcohol. In these circumstances, the person may claim that they are the victim of sexual assault.

Lack of Consent Can Spell Rape

In Broomfield, Jefferson, and Adams County, Sexual Assault / Rape also applies in circumstances where the victim is deemed incapable of consenting. One provision of the sexual assault statute prohibits sexual intrusion or penetration when the actor knows that the victim is incapable of appraising the nature of the victim's conduct. C.R.S. 18-3-402(b). This crime is a class 4 felony in the state of Colorado and is subject to the harsh Indeterminate Sentencing.

Buyer's Remorse, Alcohol, and Sexual Assault / Rape

Essentially, this law prohibits having sex with someone who is intoxicated to the degree that they are unaware of what they are doing. In my experience, I have seen clients charged with this because the "victim" had a few drinks and agreed to engage in sexual conduct, only to later regret the decision. Buyer's remorse is not enough to elevate the behavior to sexual assault but commonly, DA Offices charge these cases based on the "victim's" word alone.

Not only does the victim need to be extremely intoxicated, but the actor has to "know" that the victim is extremely intoxicated. In these cases, the District Attorney will try to prove that the victim was intoxicated to such an extent that it was impossible for them to consent and it was readily apparent to the actor just how intoxicated the victim actually was at the time of the act. In contrast, a defense attorney will look at the actions of the "victim". In these cases, because it is usually impossible to know just how intoxicated the "victim" was at the time, the only way to demonstrate level of intoxication, or lack thereof, for the jury is by looking at a person's conduct before, during, and after the encounter through the testimony of any witnesses or circumstantial evidence.

If you or someone in your family has been charged in Weld or Douglas County, or anywhere in Colorado, with felony Sexual Assault / Rape, you should call the O'Malley Law Office, P.C., as soon as possible. We know how to talk with prosecutors and how to bring about the best possible result in your case. So, be smart, exercise your right to remain silent, and call us at 303-731-0719. Together we can protect your future.

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Case Results:

  • Sexual Assault and Rape charges related to divorce. Acquittal from jury trial. Weld County, Greeley, Colorado.
  • Sexual Assault on a Child, Possession of Child Pornography. Acquittal from jury trial. Jefferson County, Golden, Colorado.
  • Arson of Nursing Home. Dismissed by Court on Defendant's Motion to Dismiss. Jefferson County, Golden, Colorado.
  • Felony Drug Distribution. Acquittal from jury trial. Boulder County, Boulder, Colorado.
  • Rape and Sexual Assault charges involving divorce and child custody. Acquittal from jury trial. Douglas County, Castle Rock, Colorado.
  • Burglary and Felony Theft. Dismissed by District Attorney. Arapahoe County, Englewood, Colorado.
  • Theft of Drugs by Nurse. Dismissed by District Attorney. Jefferson County, Golden, Colorado.
  • Sexual Assault on a Child, Position of Trust. Acquittal from Jury Trial. Adams County, Brighton, Colorado.
  • Domestic Violence. Dismissed by District Attorney. Douglas County, Castle Rock, Colorado.
  • Violation of Restraining Order. Dismissed by District Attorney. Douglas County, Castle Rock.

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