What is Second Degree Sexual Assault?

Colorado defines sexual assault (rape) as any forced or non-consensual act of sexual penetration. Almost all forms of sexual assault are felonies in Colorado. The degree of sexual assault refers to the class of felony for the crime. Second degree sexual assault refers to a Class 2 felony. If you are facing Colorado sexual assault charges, you need an experienced criminal defense attorney with a proven track record of success.

Anyone who commits sexual intrusion or penetration on a victim has committed sexual assault if:

  • It was against the victim’s will.
  • The victim submitted because they believed the perpetrator was their spouse.
  • The perpetrator had supervisory or disciplinary authority. The victim submitted because they were in the custody of law enforcement, detained at a hospital or other institution.
  • The perpetrator performed the act while claiming to provide a medical service or examination but there was no legitimate medical purpose.
  • The victim was physically helpless and unable to consent.

Sexual acts that count as sexual penetration or intrusion include:

  • Vaginal intercourse
  • Fellatio or cunnilingus
  • Anal sex
  • Anilingus
  • Fingering 
  • Penetration

Someone can be charged for second degree sexual assault, or a class 2 felony if:

  • The perpetrator was physically aided by one or more people.
  • The perpetrator was armed with a deadly weapon.
  • The perpetrator appeared to be armed with a deadly weapon. (Even with Colorado’s open carry laws, assault that occurs with or in the presence of a deadly weapon is more severely punished than the same crime without the presence of a deadly weapon.)
  • The victim suffered serious bodily injury.

Serious bodily injury means an injury that caused:

  • High risk of death.
  • High risk of serious permanent disfigurement.
  • High risk of loss or impairment of bodily function.
  • Breaks, fractures, or burns of the second or third degree.

What are the penalties for second degree sexual assault?

It is often unclear to many people how to know if sex crimes are a felony or a misdemeanor. The truth is, it depends on the laws of the state. Most sexual assaults in Colorado are classified as felonies. Sexual assaults are considered extraordinary risk crimes. An extraordinary risk crime is a crime that is considered to be a substantial risk and/or harm to society. Second degree sexual assault, also known as a Class 2 felony sexual assault or aggravated sexual assault, is an extraordinary risk time and carries a harsh maximum sentence. The penalty depends on whether or not the perpetrator used a deadly weapon. 

If the perpetrator did not use a weapon the sentence could be:

  • 8-24 years in prison and/or
  • $5,000- $1,000,000 in fines
  • Registration as a sex offender
  • Additional penalties if the victim sues the perpetrator in civil court

If the perpetrator had a weapon, the sentence can be enhanced to:

  • 16 years- life in prison, and/or
  • $5,000-$1,000,000 in fines
  • Registration as a sex offender
  • Additional penalties if the victim sues the perpetrator in civil court

Being convicted of sexual assault will stay on your record and background checks for life in most cases. Convicted felons lose their gun and voting rights. If you are not a citizen and are convicted of sexual assault, you could be deported.  It can also affect your ability to get a job, professional license, scholarships and housing. 

If you are convicted of second degree sexual assault, a class 2 felony, you are required to enter your name into the Colorado Bureau of Investigation’s sex offender registry. The registry alerts people when you move to a new community. With websites and mobile apps, it is easy for anybody to find you on a sex offender registry.

People convicted of sexual assault must provide the following information to the registry:

  • Name
  • Address
  • Date of birth
  • Physical description
  • Specific crime and date of conviction
  • Predatory habits
  • Whether or not you are a “sexual violent predator”

Sexually violent predators must register for life. They must update their registry four times a year. They can be labeled as a sexually violent predator if:

  • They were 18 years or older at the time of the crime.
  • If they were tried as an adult.
  • If the victim was a stranger.
  • If they established a relationship for the sole purpose of sexual victimization.
  • The CBI screens the convict and determines you are likely to commit a subsequent sex offense.

If a convicted sex fails to register, that is a separate class 6 felony. Penalties are in addition to penalties issued for the original crime and could include:

  • 1-1.5 years in state prison and/or
  • $1,000 – $100,000 in fines

What are the defenses for second degree sexual assault?

In a sexual assault case, the district attorney must prove guilt beyond a reasonable doubt. This is very difficult to do. Since there are rarely any eyewitness or video recordings, there is usually very little to no evidence. Usually the only evidence is verbal testimony from both sides. Therefore, the state may have a difficult time getting a conviction because of a lack of proof.

Five common defenses of sexual assault are:

  • There was no sexual penetration or intrusion.
  • The sex was consensual.
  • The accused person is mistaken for someone else.
  • The defendant is being falsely accused.
  • The sex was consensual, but the victim regretted the sex and later claimed it was assault. 

How long could second degree sexual assault stay on my record?

Second degree sexual assault, also known as a class 2 felony sexual assault can appear on a background check for life. 

If you are accused and convicted of sexual assault, you will be required to register as a sex offender. Some sex offenders are required to update their information once a year. But second degree, or class 2 felony sexual assault convicts must re-register every 3 months or face additional fines and prison time. 

Sex offenders can sometimes be considered for removal from the registry if they avoid further sex crime convictions. Those convicted of a class 2 felony sexual assault cannot petition to have themselves removed from the sex offender registry for 20 years. 

What if I’m falsely accused of second degree sexual assault?

If you have been falsely accused of second degree sexual assault, also known as a class 2 felony, you should end contact with your accusor. You must understand how serious these charges are. Just because you think you did not commit the crime, doesn’t mean you are free from trouble. You should contact a trusted, experienced defense attorney as soon as possible. It is also helpful to keep a record of what happened and compile a list of possible evidence that proves your innocence. 

How much does it cost to get a lawyer for second degree sexual assault?

An initial consultation with the experienced criminal defense attorney Jeff Weeden is free. Setting up a strong defense is critical, especially considering how severe the punishments are. But the steps to constructing a defense are often expensive. If you can’t afford a private attorney, you will be provided a public defender by the state. However, you should absolutely hire an experienced, trustworthy Denver criminal defense attorney if you can. Public defenders sometimes receive hundreds of cases every week. They have very little time to construct a strong defense. You do not get to select your public defender: they are assigned. If you are unhappy with your public defender, the only alternative is to hire a private attorney.

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