Source: L. 75: Entire part R&RE, p. 630, � 1, effective July 1. L. 2001: Entire section repealed, p. 859, � 5, effective July 1.
Editor's note: Current provisions relating to criminality of conduct are contained in � 18-1-503.5.
18-3-407. Victim's and witness's prior history - evidentiary hearing - victim's identity - protective order. (1) Subject to constitutional limitations, evidence of specific instances of the victim's or a witness's prior or subsequent sexual conduct, opinion evidence of the victim's or a witness's sexual conduct, and reputation evidence of the victim's or a witness's sexual conduct may be admissible only at trial and shall not be admitted in any other proceeding except at a proceeding pursuant to subsection (2)(c) of this section. At trial, such evidence is presumed to be irrelevant except evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, disease, or any similar evidence of sexual intercourse offered for the purpose of showing that the act or acts charged were or were not committed by the defendant.
(2) In any criminal prosecution for class 4 felony internet luring of a child, as described in section 18-3-306 (3) or under sections 18-3-402 to 18-3-405.5, 18-3-504, 18-6-301, 18-6-302, 18-6-403, 18-6-404, and any offense described in part 4 of article 7 of this title 18, or for attempt or conspiracy to commit any of these crimes, if evidence that is not excepted under subsection (1) of this section of specific instances of the victim's or a witness's prior or subsequent sexual conduct; opinion evidence of the victim's or a witness's sexual conduct; reputation evidence of the victim's or a witness's sexual conduct; or evidence that the victim or a witness has at least one incident of false reporting of unlawful sexual behavior prior to or subsequent to the alleged offense is to be offered at trial, the following procedure shall be followed:
(a) (I) A written motion must be made at least thirty-five days prior to trial, unless later for good cause shown, to the court and to the opposing parties stating that the moving party has an offer of proof articulating facts that would support a judicial finding that the evidence overcomes the presumption of irrelevance and that the probative value of evidence of specific instances of the victim's or witness's prior or subsequent sexual conduct, opinion evidence of the victim's or witness's sexual conduct, reputation evidence of the victim's or witness's sexual conduct, or evidence that the victim or witness has at least one incident of false reporting of unlawful sexual behavior prior to or subsequent to the alleged offense that is not substantially outweighed by the presumptive unfair prejudice, confusion of the issues, misleading of the jury, or unfair invasion of the privacy of the victim or witness.
(II) If the moving party intends to offer evidence concerning at least one incident of false reporting of unlawful sexual behavior prior to or subsequent to the alleged offense pursuant to subsection (2)(a)(I) of this section, the party must also articulate facts that would, by a preponderance of the evidence, demonstrate that the victim or witness has made a report of unlawful sexual behavior that was demonstrably false or false in fact prior to or subsequent to the alleged offense.
(b) The written motion shall be accompanied by an affidavit in which the offer of proof shall be stated.
(c) If the court finds that the offer of proof is sufficient, the court shall notify the other party of such. If the prosecution stipulates to the facts contained in the offer of proof, the court shall rule on the motion based upon the offer of proof without an evidentiary hearing. Otherwise, the court shall set a hearing to be held in camera prior to trial. In such hearing, to the extent the facts are in dispute, the court may allow the questioning of the victim or witness regarding the offer of proof made by the moving party or otherwise allow a presentation of the offer of proof, including but not limited to the presentation of witnesses.
(d) An in camera hearing may be held during trial if evidence first becomes available at the time of the trial or for good cause shown.
(e) At the conclusion of the hearing, or by written order if no hearing is held, if the court finds that the evidence proposed to be offered regarding the sexual conduct of the victim or witness overcomes the presumption of irrelevance, is relevant to a material issue to the case, and that the probative value of the evidence is not substantially outweighed by the probability that its admission will create unfair prejudice, confusion of the issues, misleading of the jury, or unfair invasion of the privacy of the victim or witness, the court shall order that evidence may be introduced and prescribe the nature of the evidence or questions to be permitted. The moving party may then offer evidence pursuant to the order of the court.
(f) All motions and supporting documents filed pursuant to this section shall be filed under seal and may be unsealed only if the court rules the evidence is admissible and the case proceeds to trial. If the court determines that only part of the evidence contained in the motion is admissible, only that portion of the motion and supporting documents pertaining to the admissible portion may be unsealed.
(g) The court shall seal all court transcripts, tape recordings, and records of proceedings, other than minute orders, of a hearing held pursuant to this section. The court may unseal the transcripts, tape recordings, and records only if the court rules the evidence is admissible and the case proceeds to trial. If the court determines that only part of the evidence is admissible, only the portion of the hearing pertaining to the admissible evidence may be unsealed.
(3) (a) In a criminal prosecution including an offense described in subsection (2) of this section, the court may, at any time upon motion of the prosecution or on the court's own motion, issue a protective order pursuant to the Colorado rules of criminal procedure concerning disclosure of information relating to the victim or a witness. The court may punish a violation of a protective order by contempt of court.
(b) The victim who would be the subject of the protective order may object to the motion for a protective order.
(4) (a) Evidence of the victim's manner of dress or hairstyle at the time of, prior to, or subsequent to the alleged offense is not admissible as evidence of the victim's consent to sexual contact, sexual penetration, or sexual intrusion by the defendant in a case involving unlawful sexual behavior, as defined in section 16-22-102 (9); an offense described in part 4 of article 7 of this title 18; or an attempt or conspiracy to commit any of those offenses.
(b) For purposes of this section, manner of dress does not mean:
(I) Testimony or physical evidence of the victim's clothing or its physical condition at the time of, prior to, or subsequent to the alleged offense, offered as evidence for a purpose other than the victim's consent; or
(II) Evidence of the voluntary or consensual removal of the victim's clothing.
Source: L. 75: Entire part R&RE, p. 630, � 1, effective July 1. L. 91: IP(2) amended, p. 405, � 10, effective June 6. L. 98: Entire section amended and IP(2) amended, pp. 399, 400, �� 7, 8, effective April 21. L. 2004: (3) added, p. 375, � 1, effective April 8. L. 2005: IP(1), (2)(c), and (2)(e) amended and (2)(f) and (2)(g) added, p. 426, � 5, effective April 29. L. 2006: IP(2) amended, p. 2056, � 6, effective July 1. L. 2012: (2)(a) amended, (SB 12-175), ch. 208, p. 871, � 127, effective July 1. L. 2014: IP(2) amended, (HB 14-1273), ch. 282, p. 1150, � 4, effective July 1. L. 2024: (1), IP(2), (2)(a), and (2)(e) amended and (4) added, (HB 24-1072), ch. 123, p. 408, � 2, effective July 1.
Editor's note: Amendments to the introductory portion to subsection (2) by sections 7 and 8 of House Bill 98-1177 were harmonized.
Cross references: For the legislative declaration in HB 24-1072, see section 1 of chapter 123, Session Laws of Colorado 2024.
18-3-407.5. Victim evidence - forensic evidence - electronic lie detector exam without victim's consent prohibited. (1) A law enforcement agency with jurisdiction over a sexual assault must pay for any direct cost associated with the collection of forensic evidence from a victim who reports the assault to the law enforcement agency.
(2) A law enforcement agency, prosecuting officer, or other government official may not ask or require a victim of a sexual offense to submit to a polygraph examination or any form of a mechanical or electrical lie detector examination as a condition for proceeding with any criminal investigation or prosecution of an offense. A law enforcement agency shall conduct the examination only with the victim's written informed consent. Consent shall not be considered informed unless the law enforcement agency informs the victim in writing of the victim's right to refuse to submit to the examination. In addition, the law enforcement agency shall orally provide to the victim information about the potential uses of the results of the examination.
(3) (a) A law enforcement agency, prosecuting officer, or other government official may not ask or require a victim of a sexual offense to participate in the criminal justice system process or cooperate with the law enforcement agency, prosecuting officer, or other government official as a condition of receiving a forensic medical examination that includes the collection of evidence.
(b) A victim of a sexual offense shall not bear the cost of a forensic medical examination that includes the collection of evidence that is used for the purpose of evidence collection even if the victim does not want to participate in the criminal justice system or otherwise cooperate with the law enforcement agency, prosecuting officer, or other government official. The division of criminal justice in the department of public safety shall pay the cost of the examination.
(c) When personnel at a medical facility perform a medical forensic examination that includes the collection of evidence based on the request of a victim of a sexual offense and the medical facility performing the examination knows where the crime occurred, the facility shall contact the law enforcement agency in whose jurisdiction the crime occurred regarding preservation of the evidence. If the medical facility does not know where the crime occurred, the facility shall contact its local law enforcement agency regarding preservation of the evidence. Notwithstanding any other statutory requirements regarding storage of biological evidence, the law enforcement agency contacted by the medical facility shall retrieve the evidence from the facility and maintain it pursuant to section 18-1-1103, unless a victim objects to its destruction pursuant to section 24-4.1-303, in which case the law enforcement agency must maintain it for an additional ten years.
(d) A law enforcement agency shall not submit medical forensic evidence associated with an anonymous report submitted pursuant to section 12-240-139 to the Colorado bureau of investigation or any other laboratory for testing as described in section 24-33.5-113. Medical forensic evidence associated with a medical report submitted pursuant to section 12-240-139, when the victim has consented to evidence testing, shall be submitted to the Colorado bureau of investigation or another laboratory and tested, pursuant to section 24-33.5-113, regardless of whether the victim has chosen to participate in the criminal justice system.
Source: L. 95: Entire section added, p. 948, � 3, effective July 1. L. 2008: (2) amended and (3) added, p. 263, � 1, effective March 31. L. 2013: (1) amended, (HB 13-1163), ch. 215, p. 895, � 2, effective May 13. L. 2015: (3)(c) amended and (3)(d) added, (SB 15-128), ch. 65, p. 181, � 2, effective March 30. L. 2019: (3)(d) amended, (HB 19-1172), ch. 136, p. 1675, � 92, effective October 1. L. 2021: (3)(c) amended, (HB 21-1143), ch. 191, p. 1013, � 6, effective May 27.
Cross references: For the legislative declaration in HB 21-1143, see section 1 of chapter 191, Session Laws of Colorado 2021.
18-3-407.7. Sexual assault victim emergency payment program - creation - eligibility. (1) There is hereby created the sexual assault victim emergency payment program, referred to in this section as the program, in the division of criminal justice in the department of public safety. The purpose of the program is to assist victims of sexual assault with medical expenses associated with a sexual assault that are not otherwise covered pursuant to section 18-3-407.5 or any other victim compensation program.
(2) (a) A victim must request and receive a medical forensic examination to be eligible to have medical costs and fees covered through the program. The division of criminal justice shall develop a policy for administering the program. The policy must include a requirement to establish a cap for the amount payable per victim based on actual and reasonable costs and available funds, but the minimum cap must not be less than one thousand dollars. The program must cover medical fees and costs associated with obtaining the medical forensic examination, including but not limited to emergency department fees and costs, laboratory fees, prescription medication, and physician's fees, as long as funds are available. The program may also cover medical fees and costs for injuries directly related to the sexual assault. The program may also pay for any uncovered direct costs of the medical forensic examination. The total amount paid for all expenses must not exceed the annual cap established by the division of criminal justice.
(a.5) A law enforcement agency may request reimbursement to have costs associated with the collection of forensic evidence for a victim covered through the program. The division of criminal justice shall develop a policy, including a requirement to establish an annual cap, for the amount payable to a law enforcement agency based on actual and reasonable costs and available funds.
(b) The program shall be the payer of last resort.
(c) A hospital shall limit the amounts charged for emergency or associated fees and costs eligible for payment pursuant to paragraph (a) of this subsection (2) to not more than the lowest negotiated rate from a private health plan.
(3) The division of criminal justice may waive any requirement set forth in this section for good cause shown or in the interests of justice, if it is so required.
(4) By December 31, 2024, the division of criminal justice shall develop and maintain a system that allows the division to track claims, process invoices, sort information, and produce reports concerning, at a minimum:
(a) The number of medical forensic examinations paid for by the program;
(b) The total cost of services compensated related to medical forensic examinations paid for by the program;
(c) Information concerning the status of claims in the system, including the number of claims paid, the number of claims denied and reasons for denial, the number of claims pending approval or denial, and the average time between reimbursement claim submission and approval or denial by the program;
(d) The names and locations of medical facilities that submitted claims for reimbursement from the program; and
(e) Demographic information of victims whose claims are reimbursed and denied through the program, if available.
(5) (a) On or before January 30, 2026, and on or before January 30 of each year thereafter, the division shall submit a report to the judiciary committees of the house of representatives and the senate, or any successor committees, with the information described in subsection (4) of this section from the preceding calendar year.
(b) The department shall ensure the report does not disclose any information in violation of applicable state and federal laws regarding the confidentiality of an individual's information.
(c) Notwithstanding the requirement in section 24-1-136 (11)(a)(I), the requirement to submit the report required in this subsection (5) continues indefinitely.
Source: L. 2013: Entire section added, (HB 13-1163), ch. 215, p. 895, � 3, effective May 13. L. 2023: (1) and (2)(a) amended and (2)(a.5), (4), and (5) added, (HB 23-1199), ch. 263, p. 1566, � 3, effective May 25.
18-3-407.9. Forensic nurse examiners - telehealth program - creation - appropriation. (1) There is created in the division of criminal justice in the department of public safety the forensic nurse examiners telehealth program, referred to in this section as the program. Telehealth is an important way to offer medical support, especially in the rural parts of Colorado, from experienced forensic nurse examiners, sexual assault nurse examiners, and other health-care providers. Forensic nurse examiners can collaborate during a forensic medical examination with emergency department nurses and doctors at remote sites in real time regardless of location in the state. This helps increase the access to competent forensic examinations and care for victims of crime.
(2) The general assembly shall appropriate money from the economic recovery and relief cash fund, created in section 24-75-228, as enacted by Senate Bill 21-291, enacted in 2021, to the division of criminal justice in the department of public safety to be used for the programs and purposes described in this section that also conform with the allowable purposes set forth in the federal American Rescue Plan Act of 2021, Pub.L. 117-2, as the act may be subsequently amended. The division of criminal justice in the department of public safety may use up to five percent of any money appropriated by the general assembly pursuant to this subsection (2) for development and administrative costs incurred pursuant to this subsection (2).
Source: L. 2021: Entire section added, (SB 21-292), ch. 291, p. 1721, � 3, effective June 22.
Cross references: For the legislative declaration in SB 21-292, see section 1 of chapter 291, Session Laws of Colorado 2021.