CO Code § 16-22-103 (2021)
2021 Colorado Code|Title 16 - Criminal Proceedings|Article 22 - Colorado Sex Offender Registration Act|§ 16-22-103. Sex Offender Registration - Required - Applicability - Exception

  Effective July 1, 1998, the following persons are required to register pursuant to section 16-22-108 and are subject to the requirements and other provisions specified in this article 22:   Any person who was convicted on or after July 1, 1991, in the state of Colorado of an unlawful sexual offense, as defined in section 18-3-411 (1), enticement of a child, as described in section 18-3-305, or internet luring of a child, as described in section 18-3-306 (3);    Any person who was convicted on or after July 1, 1991, in another state or jurisdiction, including but not limited to a military, tribal, territorial, or federal jurisdiction, of an offense that, if committed in Colorado, would constitute an unlawful sexual offense, as defined in section 18-3-411 (1), C.R.S., enticement of a child, as described in section 18-3-305, C.R.S., or internet luring of a child, as described in section 18-3-306, C.R.S.; and    Any person who was released on or after July 1, 1991, from the custody of the department of corrections of this state or any other state, having served a sentence for an unlawful sexual offense, as defined in section 18-3-411 (1), C.R.S., enticement of a child, as described in section 18-3-305, C.R.S., or internet luring of a child, as described in section 18-3-306, C.R.S.         On and after July 1, 1994, any person who is convicted in the state of Colorado of unlawful sexual behavior or of another offense, the underlying factual basis of which involves unlawful sexual behavior, or any person who is released from the custody of the department of corrections having completed serving a sentence for unlawful sexual behavior or for another offense, the underlying factual basis of which involved unlawful sexual behavior, shall be required to register in the manner prescribed in section 16-22-104, section 16-22-106 or 16-22-107, whichever is applicable, and section 16-22-108.    A person shall be deemed to have been convicted of unlawful sexual behavior if he or she is convicted of one or more of the offenses specified in section 16-22-102 (9), or of attempt, solicitation, or conspiracy to commit one or more of the offenses specified in said section.      For convictions entered on or after July 1, 2002, a person shall be deemed to be convicted of an offense, the underlying factual basis of which involves unlawful sexual behavior, if: (c) (I) For convictions entered on or after July 1, 2002, a person shall be deemed to be convicted of an offense, the underlying factual basis of which involves unlawful sexual behavior, if:   The person is convicted of an offense that requires proof of unlawful sexual behavior as an element of the offense; or    The person is convicted of an offense and is eligible for and receives an enhanced sentence based on a circumstance that requires proof of unlawful sexual behavior; or    The person was originally charged with unlawful sexual behavior or with an offense that meets the description in sub-subparagraph (A) or (B) of this subparagraph (I), the person pleads guilty to an offense that does not constitute unlawful sexual behavior, and, as part of the plea agreement, the person admits, after advisement as provided in subparagraph (III) of this paragraph (c), that the underlying factual basis of the offense to which he or she is pleading guilty involves unlawful sexual behavior; or    The person was charged with and convicted of an offense that does not constitute unlawful sexual behavior and the person admits on the record, after advisement as provided in subparagraph (III) of this paragraph (c), that the underlying factual basis of the offense involved unlawful sexual behavior.       If a person is originally charged with unlawful sexual behavior or with an offense that meets the description in sub-subparagraph (A) or (B) of subparagraph (I) of this paragraph (c), the court may accept a plea agreement to an offense that does not constitute unlawful sexual behavior only if:   The district attorney stipulates that the underlying factual basis of the offense to which the person is pleading guilty does not involve unlawful sexual behavior; or    The person admits, after advisement as provided in subparagraph (III) of this paragraph (c), that the underlying factual basis of the offense to which he or she is pleading guilty involves unlawful sexual behavior.       The advisement provided for purposes of this paragraph (c), in addition to meeting the requirements of the Colorado rules of criminal procedure, shall advise the person that admitting that the underlying factual basis of the offense to which the person is pleading or of which the person is convicted involves unlawful sexual behavior will have the collateral result of making the person subject to the requirements of this article. Notwithstanding any provision of this paragraph (c) to the contrary, failure to advise a person pursuant to the provisions of this subparagraph (III) shall not constitute a defense to the offense of failure to register as a sex offender if there is evidence that the defendant had actual notice of the duty to register.    In any case in which a person is deemed to have been convicted of an offense, the underlying factual basis of which involves unlawful sexual behavior, as provided in this paragraph (c), the judgment of conviction shall specify that the person is convicted of such an offense and specify the particular crime of unlawful sexual behavior involved.    The provisions of this paragraph (c) shall apply to juveniles for purposes of determining whether a juvenile is convicted of an offense, the underlying factual basis of which involves unlawful sexual behavior.         Notwithstanding any other provision of this section, any stipulation by a district attorney and any finding by the court with regard to whether the offense of which the person is convicted includes an underlying factual basis involving unlawful sexual behavior, as defined in section 16-22-102, shall be binding on the department of corrections for purposes of classification. On or after July 1, 2008, if the department of corrections receives a mittimus that does not indicate the necessary findings as required by subsection (2)(c)(II) of this section, the department shall notify the court and request that the court enter the necessary findings pursuant to subsection (2)(c)(II) of this section. (d) (I) Notwithstanding any other provision of this section, any stipulation by a district attorney and any finding by the court with regard to whether the offense of which the person is convicted includes an underlying factual basis involving unlawful sexual behavior, as defined in section 16-22-102, shall be binding on the department of corrections for purposes of classification. On or after July 1, 2008, if the department of corrections receives a mittimus that does not indicate the necessary findings as required by subsection (2)(c)(II) of this section, the department shall notify the court and request that the court enter the necessary findings pursuant to subsection (2)(c)(II) of this section.    The department of corrections shall have the authority to make a determination that a person is a sex offender, as defined in section 16-11.7-102 (2)(a), for the purposes of classification and treatment if:   The person has one or more prior convictions for a sex offense as defined in section 16-11.7-102 (3);    The person has a prior offense for which a determination has been made by the court that the underlying factual basis involved a sex offense as defined in section 16-11.7-102 (3); or    The person has been classified as a sex offender in accordance with procedures established by the department of corrections.       The procedures established by the department of corrections to classify a person as a sex offender shall require that:   The classification proceeding be conducted by a licensed attorney who shall serve as an administrative hearing officer;    The offender's attorney be permitted to attend, represent, and assist the offender at the classification proceeding; and    The offender be entitled to written notice of the reason for the proceeding, disclosure of the evidence to be presented against him or her, an opportunity to be heard in person and to present witnesses and documentary evidence, the right to confront and cross-examine adverse witnesses, unless the administrative hearing officer finds good cause for not allowing confrontation, and written findings and conclusions indicating the evidence and reasons relied upon for the classification as a sex offender.       Notwithstanding any statutory provisions to the contrary, the department of corrections shall ensure that all procedures and policies comply with the federal “Prison Rape Elimination Act of 2003”, Pub.L. 108-79, as amended.            In addition to the persons specified in subsections (1) and (2) of this section, and except as set forth in subsection (3)(b) of this section, any person convicted of an offense in any other state or jurisdiction, including but not limited to a military or federal jurisdiction, for which the person, as a result of the conviction, is required to register if the person resided in the state or jurisdiction of conviction, or for which the person would be required to register if convicted in Colorado, is required to register in the manner specified in section 16-22-108, so long as the person is a temporary or permanent resident of Colorado. The person may petition the court for an order to discontinue the requirement for registration in this state at the times specified in section 16-22-113 for offense classifications that are comparable to the classification of the offense for which the person was convicted in the other state or jurisdiction. The person may petition the court for an order to discontinue the requirement for registration in this state for offense classifications that the person would not be required to register for if convicted in Colorado.    If a juvenile is required to register only pursuant to subsection (3)(a) of this section and the juvenile's duty to register in another state or jurisdiction has been terminated by a court order, or if a trial court has determined that the juvenile is not required to register in that state or jurisdiction, then the juvenile is not required to fulfill the requirements for registration in Colorado, as set forth in section 16-22-108, and is therefore not required to petition the court for removal from the Colorado sex offender registry pursuant to section 16-22-113.       This article 22 applies to any person who receives a disposition or is adjudicated a juvenile delinquent based on the commission of any act that may constitute unlawful sexual behavior or who receives a deferred adjudication based on commission of any act that may constitute unlawful sexual behavior; except that, with respect to section 16-22-113 (1)(a) to (1)(e), a person who is adjudicated or receives a disposition as a juvenile may petition the court for an order to discontinue the duty to register as provided in those subsections, but only if the person has not subsequently been convicted as an adult of any offense involving unlawful sexual behavior or convicted as an adult of another offense, the underlying factual basis of which involves unlawful sexual behavior. In addition, the duty to provide notice to a person of the duty to register, as set forth in sections 16-22-105 to 16-22-107, applies to juvenile parole and probation officers and appropriate personnel of the division of youth services in the department of human services. If a person is required to register pursuant to this article 22 due to an adjudication or disposition as a juvenile, the duty to register automatically terminates either when the person reaches twenty-five years of age or seven years from the date the juvenile was required to register, whichever occurs later.      Notwithstanding any provision of this article 22 to the contrary, if, pursuant to a motion filed by a person described in this subsection (5) or on its own motion, a court determines that exempting the person from the registration requirement would not pose a significant risk to the community, the court, upon consideration of the totality of the circumstances, may exempt the person from the registration requirements imposed pursuant to this section if:   The person was younger than eighteen years of age at the time of the commission of the offense; and    The person has not been previously adjudicated or received a disposition for a separate offense involving unlawful sexual behavior; and    The person was adjudicated or received a disposition for any offense of unlawful sexual behavior or another offense, the underlying factual basis of which involved unlawful sexual behavior; and    The person has received an evaluation that conforms with the standards developed pursuant to section 16-11.7-103 (4)(i) from an evaluator who meets the standards established by the sex offender management board, and the evaluator recommends exempting the person from the registration requirements based upon the best interests of that person and the community; and (IV.5) The court has considered a written or oral statement by the victim of the offense for which the juvenile would otherwise be required to register, if provided by the victim, on the question of whether the juvenile should be exempted from the statutory duty to register as a sex offender; and    The court makes written findings of fact specifying the grounds for granting such exemption.       Any defendant who files a motion pursuant to this subsection (5) or the court, if considering its own motion, shall provide notice of the motion to the prosecuting district attorney. In addition, the court shall provide notice of the motion to the victim of the offense. Prior to deciding the motion, the court shall conduct a hearing on the motion at which both the district attorney and the victim shall have opportunity to be heard.       Any person who is required to register pursuant to this section and fails to do so or otherwise fails to comply with the provisions of this article may be subject to prosecution for the offense of failure to register as a sex offender, as described in section 18-3-412.5, C.R.S. Failure of any governmental entity or any employee of any governmental entity to comply with any requirement of this article shall not constitute a defense to the offense of failure to register as a sex offender if there is evidence that the defendant had actual notice of the duty to register.     History. Source: L. 2002: Entire article added, p. 1159, § 1, effective July 1. L. 2004: (1)(b), (1)(c), (3), and (5)(a) amended, p. 1108, § 2, effective May 27. L. 2007: (1) amended, p. 1687, § 3, effective July 1. L. 2008: (3) amended, p. 849, § 1, effective May 14; (2)(d) amended, p. 1754, § 1, effective July 1. L. 2011: (1)(b) amended,(HB 11-1278), ch. 224, p. 960, § 4, effective May 27; (5)(a)(IV) amended,(HB 11-1138), ch. 236, p. 1027, § 9, effective May 27. L. 2017: (4) amended,(HB 17-1329), ch. 381, p. 1969, § 17, effective June 6; IP(5)(a) and (5)(a)(III) amended,(HB 17-1302), ch. 390, p. 2013, § 2, effective January 1, 2018. L. 2018: (3) amended,(SB 18-026), ch. 143, p. 921, § 1, effective August 8. L. 2021: IP(1), (1)(a), (3), (4), and (5)(a) amended,(HB 21-1064), ch. 320, p. 1962, § 2, effective September 1.    Cross references:   For the legislative declaration in HB 17-1302, see section 1 of chapter 390, Session Laws of Colorado 2017.   ANNOTATION   Annotator's note. Since § 16-22-103 is similar to § 18-3-412.5 as it existed prior to its 2002 repeal and reenactment, relevant cases construing that provision have been included in the annotations to this section.   Prior to the 2004 amendment, subsection (1)(c) referred to the department of corrections in Colorado not that of any other state. Fendley v. People, 107 P.3d 1122 (Colo. App. 2004).   Use of present tense in subsection (3) refers to any person currently required to register in the state of conviction of the sexual offense and not to a person who “was” or “has been” required to register. Fendley v. People, 107 P.3d 1122 (Colo. App. 2004).   Although application of subsection (1) relates back to convicted sexual offenders released on or after July 1, 1991, it does not violate the prohibition against ex post facto laws, because the statute does not disadvantage the offender. The registration requirement is intended to assist law enforcement officials in investigating future sex crimes and to protect the public safety. As such, it is remedial, not punitive, and does not unconstitutionally enhance the offender's punishment. Jamison v. People, 988 P.2d 177 (Colo. App. 1999); People v. Sowell, 327 P.3d 273 (Colo. App. 2011).   The 2008 amendments to subsection (2)(d)(I) were substantive and cannot be applied retroactively. A retroactive application would modify vested rights and liabilities. Vondra v. Colo. Dept. of Corr., 226 P.3d 1165 (Colo. App. 2009).   Procedural due process does not entitle a sex offender to a hearing on the sex offender's dangerousness before requiring the sex offender to register. Due process does not guarantee the right to a hearing to establish a fact that is not material under the statute. Dangerousness is not material under the registration statute, the duty to register is triggered by a conviction of a sex offense. The statute even states the crime for which the registrant was convicted may not reflect the current level of dangerousness. People ex rel. C.B.B., 75 P.3d 1148 (Colo. App. 2003).   Procedural due process does not entitle a juvenile sex offender to present evidence or to be heard regarding his or her potential for rehabilitation. Defendant's potential for rehabilitation is irrelevant to the sex offender registration requirement; defendant was required to register as a sex offender based on his adjudication for the current offense coupled with having a prior adjudication for a sex offense. People in Interest of C.M.D., 2018 COA 172 , 452 P.3d 133.   The sex offender registration act does not deprive juveniles of their liberty or privacy interests. Defendant's substantive due process claim that registration deprives juveniles of their liberty interests in living, associating with families and friends, and circulating in society does not implicate a fundamental right and the act's stated purpose of protecting the public is rational. Juvenile defendant's privacy rights are not violated because juveniles do not necessarily have greater privacy rights than adults and internet posting required by the act is limited to certain adults. People in Interest of C.M.D., 2018 COA 172 , 452 P.3d 133.   This section does not violate the offender's right to equal protection even though this section does not apply to persons who may have been convicted the same date as the offender, but were eligible for release prior to 1991. The offender is not similarly situated to persons released prior to 1991 because the offender was not eligible for release as of said date. Jamison v. People, 988 P.2d 177 (Colo. App. 1999).   Because sex offender registration is not punishment, requiring a juvenile to register does not violate cruel and unusual punishment even though juveniles are constitutionally different from adults when it comes to sentencing. People in Interest of J.O., 2015 COA 119 , 383 P.3d 69; People in Interest of C.M.D., 2018 COA 172 , 452 P.3d 133.   The requirement for lifetime registration on the sex offender registry for twice-adjudicated juveniles constitutes punishment for purposes of an eighth amendment “cruel and unusual punishment” analysis. People in Interest of T.B., 2019 COA 89 , __ P.3d __.   Analyzing any statute under the eighth amendment involves a two-part inquiry: (1) Is the registration requirement a “punishment”, and, if so, (2) is it “cruel and unusual”? People in Interest of T.B., 2019 COA 89 , __ P.3d __.   With regard to the first inquiry, requiring a juvenile, even one who has been twice adjudicated for offenses involving unlawful sexual behavior, to register as a sex offender for life without regard for whether he or she poses a risk to public safety is an overly inclusive -- and therefore excessive -- means of protecting public safety. Because the lifetime registration requirement is not adequately tethered to the statute's stated nonpunitive purpose, the automatic lifetime registration requirement for juvenile offenders is excessive. And because the lifetime registration requirement is excessive in relation to its nonpunitive purpose when applied to juveniles, it operates more like a punishment. People in Interest of T.B., 2019 COA 89 , __ P.3d __.   The sex offender registration act taken as a whole gives fair notice that “residence” applies to more than a traditional house or apartment, so it is not unconstitutionally vague as applied to defendant. Defendant had fair notice that staying in his car may have triggered his registration duties. People v. Allman, 2012 COA 212 , 321 P.3d 557.   The duty to register as a sex offender is not a direct consequence of the entry of a guilty plea and therefore need not be included in the advisement. The statutory duty to register as a sex offender in Colorado is only a collateral consequence of a defendant's guilty plea. Failure to advise defendant of the duty to register as a sex offender does not invalidate his guilty plea. People v. Montaine, 7 P.3d 1065 (Colo. App. 1999).   The requirement that a juvenile register as a sex offender pursuant to this section does not give rise to a constitutional right to a jury trial in a juvenile adjudication because the statutory duty to register as a sex offender is not a criminal punishment. People ex rel. J.T., 13 P.3d 321 (Colo. App. 2000).   A person convicted of violating 18 U.S.C. § 2252 (a)(2) has engaged in conduct that, if committed in Colorado, would constitute sexual exploitation of a child in violation of § 18-6-403 (3) (b.5) and is, therefore, subject to the registration requirement of subsection (1)(b) of this section. Fabiano v. Armstrong, 141 P.3d 907 (Colo. App. 2006).   Based upon defendant's civil commitment in another state for a sex offense, defendant is required to register as a sex offender in this state. Defendant is a person “required to register in the state of conviction” and a person who would be “required to register if convicted in this state”. The civil commitment proceedings in the other state were equivalent to a deferred judgment and sentencing in this state, thus satisfying the “convicted” requirement of the statute. The other state's commitment procedures included sufficient due process protections. The crime that was the subject of the civil commitment would essentially have been sexual assault on a child in this state. Mayo v. People, 181 P.3d 1207 (Colo. App. 2008).   A person with an out-of-state conviction for an offense comparable to sexual assault on a child in this state is not eligible to discontinue registration with this state's sex offender registry because a person who is convicted in this state of the same offense is not eligible to discontinue registration. Curtiss v. People, 2014 COA 107 , 410 P.3d 539.   Defendant must register as a sex offender pursuant to subsection (1)(a) despite completion of a deferred sentencing agreement based on the plain language of the definition of “convicted”, as defined in § 16-22-102 (3) and as used in subsection (1)(a) of this section. Dubois v. Abrahamson, 214 P.3d 586 (Colo. App. 2009).   The phrase “as charged in the first petition filed with the court” in subsection (5)(a)(III) means the original petition as it appeared when it was filed and not any amendments or subsequent petitions. People in Interest of I.S., 2017 COA 155 , 415 P.3d 869.   The first offense criterion in subsection (5)(a)(III) for exemption from sex offender registration does not apply when a juvenile is simultaneously adjudicated for unlawful sexual contact and indecent exposure. People in Interest of J.O., 2015 COA 119 , 383 P.3d 69.   Defendant not required to register as a sex offender for offense committed in another state if all of the Colorado elements of the crime are not met. Because statute included one element that the other state's statute did not, the prosecution did not satisfy all of the elements of the crime of indecent exposure, thus defendant was not required to register as a sex offender for a conviction of indecent exposure in another state. People v. Brooks, , 296 P.3d 216 .   Sufficient competent evidence for department of corrections' hearing panel to determine defendant to be a sex offender. The panel relied on police reports and the victim's statements to determine that defendant had subjected a victim to unwanted sexual contact through threats, intimidation, and physical force. Vondra v. Colo. Dept. of Corr., 226 P.3d 1165 (Colo. App. 2009).   Evidence sufficient to establish jury's finding that defendant knowingly failed to register. Defendant admitted that he knew he had to register when he established a new address, and the evidence showed that defendant had established that residence. People v. Allman, 2012 COA 212 , 327 P.3d 273 (Colo. App. 2011).   Ongoing registration obligations under this act do not satisfy the custody requirement for a habeas corpus petition filed under 28 U.S.C. § 2254. The requirement to register under a state sex offender registration statute does not satisfy § 2254's condition that a petitioner be “in custody” at the time petitioner files a habeas petition. Registration requirements are collateral consequences of conviction that do not impose a severe restriction on an individual's freedom. Calhoun v. Colo. Attorney Gen., 745 F.3d 1070 (10th Cir.), cert. denied, 574 U.S. 935, 135 S. Ct. 376, 190 L. Ed. 2d 254 (2014).