Senate Bill 04-217

SECTION 1. Legislative intent. (1) The general assembly hereby finds and declares that: 
(a) Victims of sexual assault suffer an unimaginable trauma at the hands of their attackers; 
(b) Judges, attorneys, and all others involved in a sexual assault prosecution should ensure that sexual assault victims do not suffer any greater trauma than necessary during the prosecution of their case; 
(c) The protections that exist for all crime victims should be made available to sexual assault victims, and sexual assault victims should be informed of all the protections and services available to them. 
(2) Therefore, it is the intent of the general assembly to provide sexual assault victims with the protection they deserve. 

SECTION 2. 18-3-407 (2), Colorado Revised Statutes, is amended, and the said 18-3-407 is further amended BY THE ADDITION OF THE FOLLOWING NEW SUBSECTIONS, to read: 
18-3-407. Victim's and witness' prior history - evidentiary hearing. (2) In any criminal prosecution under sections 18-3-402 to 18-3-405.5, 18-6-301, 18-6-302, 18-6-403, and 18-6-404, FOR A CRIME SPECIFIED IN SUBSECTION (3) OF THIS SECTION or for attempt or conspiracy to commit any crime under sections 18-3-402 to 18-3-405.5, 18-6-301, 18-6-302, 18-6-403, and 18-6-404, SPECIFIED IN SUBSECTION (3) OF THIS SECTION, if evidence that is not excepted under subsection (1) of this section of specific instances of the victim's or a witness' prior or  subsequent sexual conduct, or opinion evidence of the victim's or a witness' sexual conduct, or reputation evidence of the victim's or a witness' 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 OR AT A HEARING, the following procedure shall be followed: 
(a) A written motion shall be made at least thirty days prior to trial OR HEARING, 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. 
(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 and set a hearing to be held in camera prior to trial. IF THE EVIDENCE IS SOUGHT TO BE ADMITTED IN A HEARING OTHER THAN A TRIAL, THE COURT SHALL CONDUCT, IN CAMERA, ANY PORTION OF THE HEARING PERTAINING TO A MOTION FILED UNDER THIS SECTION. In such hearing, the court shall allow the questioning of the victim or witness regarding the offer of proof made by the moving party and shall otherwise allow a full 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, 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. 
(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. IF THE COURT  DETERMINES THAT ONLY PART OF THE EVIDENCE IS ADMISSIBLE, ONLY  THAT PORTION OF THE MOTION AND SUPPORTING DOCUMENTS PERTAINING  TO THE ADMISSIBLE EVIDENCE MAY BE UNSEALED. 
(g) ALL COURT TRANSCRIPTS, TAPE RECORDINGS, AND RECORDS OF  COURT PROCEEDINGS OF A HEARING HELD PURSUANT TO THIS SECTION  SHALL BE SEALED IF THE COURT DETERMINES THAT ONLY PART OF THE EVIDENCE CONTAINED IN THE MOTION IS ADMISSIBLE. ONLY THE PART OF THE HEARING PERTAINING TO THE ADMISSIBLE EVIDENCE MAY BE UNSEALED. 
(3) THE PROVISIONS OF SUBSECTION (2) OF THIS SECTION APPLY TO  THE FOLLOWING CRIMES: 
(a) SEXUAL ASSAULT, AS DESCRIBED IN SECTION 18-3-402; 
(b) UNLAWFUL SEXUAL CONDUCT, AS DESCRIBED IN SECTION  18-3-404; 
(c) SEXUAL ASSAULT ON A CHILD, AS DESCRIBED IN SECTION 18-3-405; 
(d) SEXUAL ASSAULT ON A CHILD BY ONE IN A POSITION OF TRUST, AS DESCRIBED IN SECTION 18-3-405.3; 
(e) SEXUAL ASSAULT ON A CLIENT BY A PSYCHOTHERAPIST, AS  DESCRIBED IN SECTION 18-3-405.5; 
(f) INCEST, AS DESCRIBED IN SECTION 18-6-301; 
(g) AGGRAVATED INCEST, AS DESCRIBED IN SECTION 18-6-302;
(h) SEXUAL EXPLOITATION OF CHILDREN, AS DESCRIBED IN SECTION 18-6-403; AND
(i) PROCUREMENT OF A CHILD FOR SEXUAL EXPLOITATION, AS DESCRIBED IN SECTION 18-6-404.
(4) IN A CRIMINAL PROSECUTION, INCLUDING BUT NOT LIMITED TO PROSECUTION FOR AN OFFENSE DESCRIBED IN SUBSECTION (3) OF THIS  SECTION, THE COURT MAY, AT ANY TIME, ISSUE A PROTECTIVE ORDER  PURSUANT TO THE 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. 
(5) THE LAW ENFORCEMENT OFFICER WHO TAKES THE INITIAL REPORT OF A CRIME, INCLUDING BUT NOT LIMITED TO A CRIME DESCRIBED IN SUBSECTION (3) OF THIS SECTION, FROM THE VICTIM SHALL NOTIFY THE  VICTIM OF THE VICTIM'S RIGHTS UNDER SECTION 16a OF ARTICLE II OF THE STATE CONSTITUTION AND PART 3 OF ARTICLE 4.1 OF TITLE 24, C.R.S. 

SECTION 3. Part 1 of article 21 of title 13, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SECTION to read: 
13-21-122. Civil action - protective order violation. A VICTIM WHOSE IDENTITY IS PROTECTED BY A PROTECTIVE ORDER ISSUED PURSUANT TO SECTION 18-3-407 (4), C.R.S., SHALL HAVE A PRIVATE CIVIL RIGHT OF ACTION AGAINST A PERSON WHO IS SUBJECT TO THE PROTECTIVE  ORDER AND WHO WILLFULLY VIOLATES THE PROTECTIVE ORDER. IF THE VICTIM PREVAILS IN THE ACTION, HE OR SHE SHALL BE ENTITLED TO ACTUAL DAMAGES IN AN AMOUNT UP TO ONE HUNDRED THOUSAND DOLLARS, A CIVIL PENALTY IN THE AMOUNT OF FIVE THOUSAND DOLLARS, AND ATTORNEY FEES AND COSTS.

SECTION 4. Effective date. This act shall take effect at 12:01 a.m. on the day following the expiration of the ninety-day period after final adjournment of the general assembly that is allowed for submitting  a referendum petition pursuant to article V, section 1 (3) of the state constitution (August 4, 2004, if adjournment sine die is on May 5, 2004); except that, if a referendum petition is filed against this act or an item, section, or part of this act within such period, then the act, item, section,  or part, if approved by the people, shall take effect on the date of the official declaration of the vote thereon by proclamation of the governor. 

Shading denotes HOUSE amendment. Double underlining denotes SENATE amendment.

Capital letters indicate new material to be added to existing statute. Dashes through the words indicate deletions from existing statute.