CO Code § 18-3-407 (2021)
2021 Colorado Code|Title 18 - Criminal Code|Article 3 - Offenses Against the Person|Part 4 - Unlawful Sexual Behavior|§ 18-3-407. Victim's and Witness's Prior History - Evidentiary Hearing - Victim's Identity - Protective Order

  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 paragraph (c) of subsection (2) of this section. At trial, such evidence shall be presumed to be irrelevant except:   Evidence of the victim's or witness' prior or subsequent sexual conduct with the actor;    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.       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, or for attempt or conspiracy to commit any of said 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, or opinion evidence of the victim's or a witness's sexual conduct, or reputation evidence of the victim's or a witness's sexual conduct, or evidence that the victim or a witness has a history of false reporting of sexual assaults is to be offered at trial, the following procedure shall be followed:   A written motion shall 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 of the relevancy and materiality of evidence of specific instances of the victim's or witness' prior or subsequent sexual conduct, or opinion evidence of the victim's or witness' sexual conduct, or reputation evidence of the victim's or witness' sexual conduct, or evidence that the victim or witness has a history of false reporting of sexual assaults that is proposed to be presented.    The written motion shall be accompanied by an affidavit in which the offer of proof shall be stated.    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.    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.    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 is relevant to a material issue to the case, 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.    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.    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.         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.    The victim who would be the subject of the protective order may object to the motion for a protective order.         History. 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.    Editor's note:   Amendments to the introductory portion to subsection (2) by sections 7 and 8 of House Bill 98-1177 were harmonized.   ANNOTATION   Law reviews. For article, “Hearsay in Criminal Cases Under The Colorado Rules of Evidence: An Overview”, see 50 U. Colo. L. Rev. 277 (1979).   Rape shield statute not unconstitutional. People v. Conyac, 2014 COA 8 M, 361 P.3d 1005.   Basic purpose of section is one of public policy: to provide rape and sexual assault victims greater protection from humiliating and embarrassing public “fishing expeditions” into their past sexual conduct, without a preliminary showing that evidence thus elicited will be relevant to some issue in the pending case. People v. McKenna, 196 Colo. 367 , 585 P.2d 275 (1978); People v. Braley, 879 P.2d 410 (Colo. App. 1993); People v. Murphy, 919 P.2d 191 (Colo. 1996); People in Interest of K.N., 977 P.2d 868 (Colo. 1999); People v. Kyle, 111 P.3d 491 (Colo. App. 2004); People v. Golden, 140 P.3d 1 (Colo. App. 2005).   This section reflects the general assembly's intent to prevent victims of sexual assaults from being subjected to psychological or emotional abuse as the price of their cooperation in prosecuting sex offenders. People v. Kyle, 111 P.3d 491 (Colo. App. 2004).   Section held not to apply where victim was not a rape victim, the defendant was not accused of sexual assault, the defense asserted was not consent, nor was the evidence offered to impeach the victim's credibility. People v. Miller, 981 P.2d 654 (Colo. App. 1998); People v. Carlson, 72 P.3d 411 (Colo. App. 2003).   Homosexual orientation is within the purview of this section. People v. Koon, 713 P.2d 410 (Colo. App. 1985); People v. Murphy, 919 P.2d 191 (Colo. 1996).   Prosecution may “open the door” to inadmissible evidence of a rape victim's sexual orientation and past sexual conduct, allowing the defendant to inquire into the previously barred matter. People v. Murphy, 919 P.2d 191 (Colo. 1996).   But the concept of “opening the door” is subject to the considerations of relevance and prejudice required under C.R.E. 401 and C.R.E. 403. People v. Melillo, 25 P.3d 769 (Colo. 2001).   But “opening the door” to evidence on an issue does not mean that any evidence on that issue is automatically admissible. Where prosecution opened the door to evidence of victim's homosexuality, defendant was still required to present such evidence via reputation or opinion evidence, not via a specific instance of conduct. People v. Miller, 981 P.2d 654 (Colo. App. 1998).   Victim's statements that he was “not into whatever it is”, that he believed the defendant was a “sick bastard”, and that he was “not that kind” did not necessarily suggest that the victim was heterosexual, opening the door to evidence of the victim's sexual orientation or past sexual contact. People v. Murphy, 919 P.2d 191 (Colo. 1996).   No denial of right to confront accuser. This section strikes a balance by conditioning admission of evidence of the victim's sexual history on the defendant's preliminary showing that it is relevant, and involves no denial of the defendant's right to confront his accuser for there is no constitutional right to introduce irrelevant and highly inflammatory evidence. People v. McKenna, 196 Colo. 367 , 585 P.2d 275 (1978).   This section does not deny a defendant's right to confront his accuser. Certain exceptions are made therein to preserve such rights of the defendant. People v. Johnson, 671 P.2d 1017 (Colo. App. 1983).   This section does not violate defendant's confrontation rights. Defendant's inability to confront the victim at trial resulted not from the provisions of this section, but from his failure to follow the procedure set forth in this section or to show good cause why he should have been excused from following that procedure. People v. Gholston, 26 P.3d 1 (Colo. App. 2000).   Section neither wholly substantive nor procedural. This section cannot be characterized as either purely substantive and thus entirely within the general assembly's power, or purely procedural and thus subject solely to this court's rulemaking power, but rather it is “mixed” in nature. People v. McKenna, 196 Colo. 367 , 585 P.2d 275 (1978); People in Interest of K.N., 977 P.2d 868 (Colo. 1999).   Section does not unconstitutionally intrude into matters exclusively judicial nor does it violate § 21 of art. III or art. VI, Colo. Const. People v. McKenna, 196 Colo. 367 , 585 P.2d 275 (1978).   Evidence of prior sex act of prosecutrix. It is essential that an accused lay a proper foundation for the introduction of the evidence of the prosecutrix's prior sex act. People v. Martinez, 634 P.2d 26 (Colo. 1981); People v. Prentiss, 172 P.3d 917 (Colo. App. 2006).   Evidence of a specific instance of sexual activity, offered to show the source or origin of semen, is not precluded by the statutory presumption of irrelevance or the procedural safeguards which are given to other evidence of a prosecutrix's past sexual activity. People v. Martinez, 634 P.2d 26 (Colo. 1981).   Evidence of a prior sexual act with another man, which could explain the presence of semen in the prosecutrix's vaginal tract, is relevant in that it tends to render more probable the inference that defendant did not have sexual intercourse with the prosecutrix. People v. Martinez, 634 P.2d 26 (Colo. 1981).   Victim's testimony about lack of prior sex. This section does not specifically prohibit the victim from testifying as to the lack of prior sexual activity. People v. Johnson, 671 P.2d 1017 (Colo. App. 1983).   Evidence of victim's virginity should not have been admitted because it was so over-inclusive that its prejudicial nature outweighed its probative value. Even evidence falling within an exception to the rape shield statute is not automatically admissible. Fletcher v. People, 179 P.3d 969 (Colo. 2007).   Deletion of reference to prior sexual conduct in sexual assault victim's personal diary that was admitted into evidence after she relied on it to pinpoint the date of offense was proper under rape shield law. People v. Wilson, 678 P.2d 1024 (Colo. App. 1984).   Under subsection (1), evidence of prior or subsequent sexual conduct is presumptively irrelevant unless such contact is with the defendant or unless there are specific instances of sexual activity showing the source or origin of semen, pregnancy, disease, or similar evidence that would show that the act charged was not committed by the defendant. People v. Braley, 879 P.2d 410 (Colo. App. 1993).   The term “similar evidence” in subsection (1)(b) refers to evidence having characteristics in common with, or very much like, evidence showing the source or origin of semen, pregnancy, or disease, all of which are examples of physical evidence or condition. People v. Kyle, 111 P.3d 491 (Colo. App. 2004).   If the evidence does not fall within one of the statutory exceptions contained in subsection (1), the presumption of irrelevance may nevertheless be rebutted when the defendant offers proof that the evidence is relevant to a material issue in the case. If the trial court determines the offer of proof to be sufficient, it must conduct an in-camera hearing regarding the evidence. People v. Kyle, 111 P.3d 491 (Colo. App. 2004).   This section applies to evidence of a sexual assault witness's sexual history. There is no exception to the statute if the proffered evidence is not being offered for the truth of the matter asserted. The proponent of such evidence must comply with the offer of proof procedure and in camera hearing requirement to ensure that the evidence is relevant and material before it can be introduced at trial. People v. MacLeod, 176 P.3d 75 (Colo. 2008).   Evidence within the ambit of subsection (2) is not automatically admissible, as it remains subject to the usual rules of evidence. Specifically, a trial court must apply C.R.E. 403 to balance the probative value of the proffered evidence against any possible unfair prejudice. People v. Kyle, 111 P.3d 491 (Colo. App. 2004).   Evidence of an alternative suspect's prior sexual conduct with someone other than the victim has questionable relevance to an alternate suspect defense. Even if the evidence is relevant, the probative value of the evidence is substantially outweighed by the danger of confusing the issues and misleading the jury. People v. Salazar, 2012 CO 20, 272 P.3d 1067.   Exception for “similar evidence of sexual intercourse” does not include evidence of a victim's prior sexual conduct because that would defeat the purpose of the rape shield statute. People v. Kyle, 111 P.3d 491 (Colo. App. 2004).   Subsection (2) only requires defense counsel to file a motion and an affidavit in which the offer of proof is stated, and it does not indicate any limitations upon, nor does it identify, who may be an affiant. People in Interest of K.N., 977 P.2d 868 (Colo. 1999).   Evidence does not become inadmissible under this section or under C.R.E. 404 simply because it might indirectly cause the finder of fact to make an inference concerning the victim's prior sexual conduct. People v. Cobb, 962 P.2d 944 (Colo. 1998); People v. Williamson, 249 P.3d 801 (Colo. 2011).   Prior sexual conduct evidence not presumptively irrelevant is also not automatically admissible; trial court must apply C.R.E. 403 to balance the probative value of the proffered evidence against any possible unfair prejudice. People v. Harris, 43 P.3d 221 (Colo. 2002).   Evidence of victim's rape fantasy and victim's statements regarding fantasy admissible under rape shield statute. The evidence and supporting statements should be admitted since the evidence and statements were material and relevant to the issue of consent. People v. Garcia, 179 P.3d 250 (Colo. App. 2007).   Evidence of defendant's prior sexual relationship with victim subject to “prior sexual contact with actor” exception to rape shield statute. The evidence should be admitted since it is material and relevant to the issue of consent and supported defendant's theory of the case. People v. Garcia, 179 P.3d 250 (Colo. App. 2007).   Statements acknowledging the existence of a committed romantic relationship are evidence of neither sexual conduct nor sexual orientation. As such, if evidence of such a committed romantic relationship is otherwise relevant to the case, it is admissible and not barred by the rape shield statute. People v. Golden, 140 P.3d 1 (Colo. App. 2005).   If initial questions into the existence of such a relationship are ruled in order, a court cannot foreclose cross-examination through use of prior inconsistent statements in that regard. People v. Golden, 140 P.3d 1 (Colo. App. 2005).   Evidence of victim's prior sexual encounter was not logically relevant to the question of whether the defendant committed sexual assault or whether victim consented to intercourse and trial court properly excluded it under the rape shield statute's presumption of irrelevance. People v. Harris, 43 P.3d 221 (Colo. 2002).   A victim's limited mental capacity, like a victim's young age, permits an inference that the victim's sexual knowledge could be explained only by the alleged assault, and therefore evidence offered to show an alternative source of sexual knowledge may overcome the rape shield's presumption of inadmissibility. Trial court abused its discretion finding that the victim's prior sexual conduct was not relevant to show an alternative source of sexual knowledge. People v. Osorio-Bahena, 2013 COA 55 , 312 P.3d 247.   Trial court did not commit error in denying defendant's motion to admit witness testimony in sexual assault prosecution without a hearing where defendant sought to admit testimony that one of the victims had stated that she was having a sexual relationship with defendant and that she had sex for money. Such evidence was presumptively irrelevant and court properly concluded that offer of proof was insufficient to require evidentiary hearing. People v. Braley, 879 P.2d 410 (Colo. App. 1993).   Proffered testimony that victim owned condoms and had a male visitor was only marginally probative as to whether the victim was sexually active prior to the incidents involving the defendant. Richmond v. Embry, 122 F.3d 866 (10th Cir. 1997).   In addition, the proffered testimony was not the type that if believed would have, by necessity, exculpated the defendant. Richmond v. Embry, 122 F.3d 866 (10th Cir. 1997).   Moreover, in the context of the entire record, the appellate court was not persuaded that the proffered testimony, even if admitted, would have created a reasonable doubt that did not exist without the evidence. Richmond v. Embry, 122 F.3d 866 (10th Cir. 1997).   Trial court properly excluded evidence under the rape shield statute. The rape shield statute is designed to keep out evidence offered to show the victim was predisposed to homosexual, pedophilic experiences. People v. Dembry, 91 P.3d 431 (Colo. App. 2003).   Testimony regarding the victim prostituting herself for drugs a year before the crimes, alone, could not lead to reasonable inference that the victim had a consensual sexual relationship with the defendant shortly before the crimes. People v. Sims, 2019 COA 66 , 457 P.3d 719.   Credibility of a victim in a sexual assault case may be attacked by showing that she has a history of making false accusations. People v. Wilson, 678 P.2d 1024 (Colo. App. 1983), cert. denied, 469 U.S. 843, 105 S. Ct. 148, 83 L. Ed. 2d 87 (1984).   Trial court erred in precluding defendant from inquiring into, and if necessary, presenting evidence of, a romantic relationship between alleged victim and a friend. Evidence of alleged victim's romantic and sexual relationship with friend was relevant to a material issue in the case, namely, victim's motive to lie. Trial court's exclusion of the motive evidence infringed upon defendant's constitutional right to confront witnesses. People v. Owens, 183 P.3d 568 (Colo. App. 2007).   Allegation that charges were not brought as a result of other sexual assault allegations is insufficient to warrant the court convening an evidentiary hearing under subsection (2)(c). To invoke such a hearing, the statute requires that the affidavit accompanying the defendant's offer of proof must articulate facts that, if demonstrated at the evidentiary hearing by a preponderance of the evidence, would show that the alleged victim made multiple prior or subsequent reports of sexual assault that were in fact false. People v. Weiss, 133 P.3d 1180 (Colo. 2006).   Defendant is not required to prove at the offer of proof stage that the accuser's prior allegations of sexual assault were “false in fact”. Rather, defendant needs only to show that, at an evidentiary hearing, he could establish the falsity of the accuser's prior accusations by the low preponderance of the evidence standard. People v. Marx, 2019 COA 138 , 467 P.3d 1196.   Defendant's offer of proof that, at best, demonstrated only one prior sexual assault false report is insufficient to warrant a hearing under this section. People v. Lancaster, 2015 COA 93 , 373 P.3d 655.   Evidence that a third person claimed that the victim had been previously raped while the victim denied the alleged prior rape properly excluded because it was not evidence of false reporting of a rape incident. People v. Schmidt, 885 P.2d 312 (Colo. App. 1994).   Evidence of victim's reputation for sexual conduct was not relevant, in order to show defendant's state of mind at time he committed alleged sexual assault, where there was no indication that defendant knew anything about victim's reputation at time of assault; accordingly, evidence was properly excluded. People v. Moreno, 739 P.2d 866 (Colo. App. 1987).   Where the material issue at trial is whether the complainant consented to the sexual contact, the understanding or state of mind of the accused regarding the complainant's sexual history is neither material nor relevant to the issue of whether the complainant consented, and a trial court may only allow the admission of such evidence that is relevant to a material issue to the case. People in Interest of K.N., 977 P.2d 868 (Colo. 1999).   Defendant cannot justify his behavior or mitigate his culpability through his knowledge of the victim's sexual history; accordingly, evidence of the victim's sexual history contained in defendant's offer of proof was held irrelevant and immaterial because it only served to foster an impermissible inference, namely, that the victim's prior sexual activity demonstrated that she did not refuse the defendant's sexual advances. People in Interest of K.N., 977 P.2d 868 (Colo. 1999).   Propounding questions with no reasonable basis in fact for the interrogation. Under C.R.E. 403 and this section, the defendant held not to have established entitlement to elicit the name of the male whom the child sexual assault victim allegedly had intercourse with days before the date of the sexual assault. People v. Vialpando, 804 P.2d 219 (Colo. App. 1990).   Evidence of victim's sexual history inadmissible to attack her credibility as a witness after victim stated to a treating nurse that the defendant had taken her virginity, because victim's statement related to a collateral issue, and extrinsic evidence is generally inadmissible to contradict a witness's testimony on a collateral matter. People in Interest of K.N., 977 P.2d 868 (Colo. 1999).   Evidence of past acts of solicitation of prostitution, even when no sexual contact or intercourse occurred, is “sexual conduct” and protected under this statute. The general assembly intended the term “sexual conduct” to encompass a broader range of behaviors than those that it defined in § 18-3-401 . People v. Williamson, 249 P.3d 801 (Colo. 2011).   The term “prior sexual conduct” includes prior sexual assaults. People v. Aldrich, 849 P.2d 821 (Colo. App. 1992); People v. Kyle, 111 P.3d 491 (Colo. App. 2004).   The term “prior or subsequent sexual conduct” includes sexual assaults perpetrated by the victim. Because perpetrators may also be the victims of sexual assault, the court concluded that, under the plain language of this section, such perpetrators are within the statute's protection. Because the defendant failed to comply with the procedural requirements of this section for the introduction of testimony regarding the victim's sexual conduct, such testimony was appropriately barred. People v. Gholston, 26 P.3d 1 (Colo. App. 2000).   Applied in People v. Blalock, 197 Colo. 320 , 592 P.2d 406 (1979); People in Interest of M.M., 43 Colo. App. 65, 599 P.2d 968 (1979); People v. Gallegos, 644 P.2d 920 (Colo. 1982); People v. Rice, 709 P.2d 67 (Colo. App. 1985); People v. Meis, 837 P.2d 258 (Colo. App. 1992); People v. Wallen, 996 P.2d 182 (Colo. App. 1999); People v. Conyac, 2014 COA 8 M, 361 P.3d 1005.