Domestic Violence — C.R.S. 18-1-1001 and 18-6

This site is copyrighted, supported, and maintained by the Equal Justice Foundation.


 

| EJF Home | Join the EJF | Comments? | Get EJF newsletter | Newsletters |

| DV Home | Abstract | Contents | Authors and Site Map | Tables | Index | Bibliography |

 

| Chapter 14 — Applicable Colorado Laws |

| Next — Perjury |

| Back— Criminal Mischief |


 

Index

Domestic violence is not a separate crime

Orders and proceedings against defendant — Current law

18-1-1001 - Protection order against defendant.

Adultery — Current law

18-6-501 - Adultery

Domestic violence — Current law

18-6-800.3 - Definitions.

18-6-801 - Domestic violence - sentencing.

18-6-801.5 - Domestic violence - evidence of similar transactions.

18-6-801.6 - Domestic violence - summons and complaint.

18-6-802 - Domestic violence - local board - treatment programs - liability immunity - repeal. (Repealed)

18-6-802.5 - Domestic violence - local board - treatment programs - liability immunity.

18-6-803 - Commission - manual of standards for treatment of domestic violence perpetrators - repeal. (Repealed)

18-6-803.5 - Crime of violation of a restraining order - penalty - peace officers' duties.

18-6-803.6 - Duties of peace officers and prosecuting agencies - preservation of evidence.

18-6-803.7 - Central registry of restraining orders - creation.

18-6-803.8 - Foreign protection orders.(Repealed)

18-6-803.9 - Assaults and deaths related to domestic violence - report.

18-6-804 - Repeal of part. (Repealed)

18-6-805 - Repeal of sections - repeal. (Repealed)

Commentary

Suggested revisions

18-1-1001 - Restraining order against defendant.

18-6-800.3 - Definitions.

18-6-801 - Domestic violence - sentencing.

18-6-801.5 - Domestic violence - evidence of similar transactions.

18-6-803.5 - Crime of violation of a restraining order - penalty - peace officers' duties.

18-6-803.6 - Duties of peace officers and prosecuting agencies - preservation of evidence.

18-6-803.9 - Assaults and deaths related to domestic violence - report.


 

Domestic violence is not a separate crime

Top

Note that in Colorado a charge of domestic violence is not a separate, distinct crime in and of itself. Instead it is an add-on charge to any other crime or disobedience of a civil restraining order. The addition of a domestic violence charge may be made either by the police or the district attorney, or may be heard as a contempt of court proceeding independent of either.

Once a charge of domestic violence is leveled it cannot be plea bargained to a lesser crime that does not include the domestic violence rider.

The Colorado Bureau of Investigation tracks domestic violence when it is involved in the following crimes:

• Homicide

• Forcible sex

• Robbery

• Aggravated assault

• Simple assault

• Intimidation

• Kidnapping

• Non-force sex

However, a domestic violence charge may be tacked on to any other crime with harassment probably the most common example.


 

Orders and proceedings against defendant — Current law (November 2012)

18-1-1001 - Protection order against defendant.

Top

(1) There is hereby created a mandatory protection order against any person charged with a violation of any of the provisions of this title, which order shall remain in effect from the time that the person is advised of his or her rights at arraignment or the person's first appearance before the court and informed of such order until final disposition of the action. Such order shall restrain the person charged from harassing, molesting, intimidating, retaliating against, or tampering with any witness to or victim of the acts charged. The protection order issued pursuant to this section shall be on a standardized form prescribed by the judicial department and a copy shall be provided to the protected parties.

(2) At the time of arraignment or the person's first appearance before the court, the court shall inform the defendant of the protection order effective pursuant to this section and shall inform the defendant that a violation of such order is punishable by contempt.

(3) Nothing in this section shall preclude the defendant from applying to the court at any time for modification or dismissal of the protection order issued pursuant to this section or the district attorney from applying to the court at any time for further orders, additional provisions under the protection order, or modification or dismissal of the same. The trial court shall retain jurisdiction to enforce, modify, or dismiss the protection order until final disposition of the action. Upon motion of the district attorney or on the court's own motion for the protection of the alleged victim or witness, the court may, in cases involving domestic violence as defined in section 18-6-800.3 (1) and cases involving crimes listed in section 24-4.1-302, C.R.S., except those listed in paragraphs (cc.5) and (cc.6) of subsection (1) of that section, enter any of the following further orders against the defendant:

(a) An order to vacate or stay away from the home of the alleged victim or witness and to stay away from any other location where the victim or witness is likely to be found;

(b) An order to refrain from contact or direct or indirect communication with the alleged victim or witness;

(c) An order prohibiting possession or control of firearms or other weapons;

(d) An order prohibiting possession or consumption of alcohol or controlled substances; and

(e) Any other order the court deems appropriate to protect the safety of the alleged victim or witness.

(4) Any person failing to comply with a protection order issued pursuant to this section commits the crime of violation of a protection order and may be punished as provided in section 18-6-803.5.

(5) Before a defendant is released on bail pursuant to article 4 of title 16, C.R.S., the court shall, in cases involving domestic violence as defined in section 18-6-800.3 (1), or in cases of stalking pursuant to section 18-3-602, state the terms of the protection order issued pursuant to this section, including any additional provisions added pursuant to subsection (3) of this section, to the defendant on the record, and the court shall further require the defendant to acknowledge the protection order as a condition of any bond for the release of the defendant. The prosecuting attorney shall, in such domestic violence cases or stalking cases, notify the alleged victim, the complainant, and the protected person of the order if such persons are not present at the time the protection order is issued.

(6) The defendant or, in cases involving domestic violence as defined in section 18-6-800.3 (1), or in cases of stalking pursuant to section 18-3-602, the prosecuting attorney may request a hearing before the court to modify the terms of a protection order issued pursuant to this section. Upon such a request, the court shall set a hearing and the prosecuting attorney shall send notice of the hearing to the defendant and the alleged victim. At the hearing the court shall review the terms of the protection order and any further orders entered and shall consider the modifications, if any, requested by the defendant or the prosecuting attorney.

(7) The duties of peace officers enforcing orders issued pursuant to this section shall be in accordance with section 18-6-803.5 and any rules adopted by the Colorado supreme court pursuant to said section.

(8) For purposes of this section:

(a) "Court" means the trial court or a designee of the trial court.

(a.5) "Protection order" shall include a restraining order entered pursuant to this section prior to July 1, 2003.

(b) "Until final disposition of the action" means until the case is dismissed, until the defendant is acquitted, or until the defendant completes his or her sentence. Any defendant sentenced to probation or incarceration shall be deemed to have completed his or her sentence upon discharge from probation or incarceration, as the case may be.

Top

Source: L. 84: Entire part added, p. 500, § 3, effective July 1. L. 85: (1) and (2) amended, p. 617, § 10, effective July 1. L. 91: Entire section amended, p. 419, § 3, effective May 31. L. 94: (1) and (3) amended, p. 2023, § 3, effective June 3; (3) amended and (5) and (6) added, p. 2041, § 24, effective July 1; (1) amended and (7) added, p. 2009, § 6, effective January 1, 1995. L. 98: (1) and IP(3) amended and (8) added, p. 1442, § 28, effective July 1. L. 2003: (1), (2), IP(3), (4), (5), and (6) amended and (8)(a.5) added, pp. 1002, 1003, §§ 4, 5, effective July 1. L. 2011: IP(3), (3)(a), (3)(b), and (3)(e) amended, (HB 11-1267), ch. 273, p. 1234, § 1, effective June 2. L. 2012: (5) and (6) amended, (HB 12-1114), ch. 176, p. 632, § 3, effective May 11.

Editor's note: This title was numbered as chapter 40, C.R.S. 1963. The substantive provisions of this title were repealed and reenacted in 1971, resulting in the addition, relocation, and elimination of sections as well as subject matter. For amendments to this title prior to 1971, consult the Colorado statutory research explanatory note beginning on page vii in the front of this volume. For a detailed comparison of this title, see the comparative tables located in the back of the index.

Law reviews: For article, "Criminal Law", which discusses Tenth Circuit decisions relating to criminal law, see 61 Den. L.J. 255 (1984); for article, "Criminal Law", which discusses Tenth Circuit decisions dealing with criminal law, see 62 Den. U. L. Rev. 125 (1985); for a discussion of Tenth Circuit decisions dealing with criminal law, see 66 Den. U. L. Rev. 711 (1989) and 67 Den. U. L. Rev. 691 (1990); for article, "Felony Sentencing in Colorado", see 18 Colo. Law. 1689 (1989); for article, "1990 Criminal Law Legislative Update", see 19 Colo. Law. 2049 (1990).

Law reviews: For article, "1994 Legislature Strengthens Domestic Violence Protective Orders", see 23 Colo. Law. 2327 (1994); for article, "Dissolution of Marriage and Domestic Violence: Considerations for the Family Law Practitioner", see 37 Colo. Law. 43 (October 2008).

Editor's note: Amendments to subsection (1) in House Bill 94-1092 and House Bill 94-1090 were harmonized. Amendments to subsection (3) in House Bill 94-1092 and House Bill 94-1253 were harmonized.

Cross references: For restraining orders against children under the "Colorado Children's Code", see § 19-3-103.1; for the "Colorado Victim and Witness Protection Act of 1984", see part 7 of article 8 of this title.

Annotation

Classifying a violation of a criminal restraining order as a crime more serious than the offense of violating a domestic abuse restraining order does not violate equal protection of the laws. This section seeks to protect those who must present evidence in the criminal justice system while section 14-4-102 is designed to protect persons in a volatile domestic setting. People v. Brockelman, 862 P.2d 1040 (Colo. App. 1993).

Section 16-4-105 (1)(o) permits a court to designate persons to prepare information concerning the accused in order to assist the judge in deciding whether to order release on personal recognizance. Pursuant to this statutory authority, the judges of the first judicial district authorized the pretrial service officers, as bond commissioners, to implement the bond schedule of the district. Although the bond schedule did not address temporary restraining orders specifically, in cases involving allegations of domestic violence, the pretrial service officers, acting as bond commissioners, were expected to deliver to the defendant a temporary restraining order pursuant to this section. The court concluded that, as a matter of law, these are judicial acts integral to the judicial process and therefore are cloaked in absolute quasi-judicial immunity. Whitesel v. Sengenberger, 222 F.3d 861 (10th Cir. 2000).


 

Adultery — Current law (November, 2005)

18-6-501 -Adultery

Top

Any sexual intercourse by a married person other than with that person's spouse is adultery, which is prohibited.

 

Source: L. 71: R&RE, p. 449, § 1. C.R.S. 1963: § 40-6-501.

Am. Jur.2d. See 2 Am. Jur.2d, Adultery and Fornication, § § 3-5.

C.J.S. See 2 C.J.S., Adultery, § § 3, 4.

Annotator's note. Since § 18-6-501 is similar to former C.L. § 6837, a relevant case construing that provision has been included in the annotations to this section.

Purpose of section. This section is designed to prohibit and punish the disgraceful and scandalous conduct of those who would, by their evil and immoral example, debase and demoralize society. People v. Bright, 77 Colo. 563, 238 P. 71 (1925).

Jury determines weight of evidence. In a criminal prosecution for adultery under former provisions of this section, if there was sufficient evidence to justify the jury in finding that the parties lived together in an open state of adultery, the court erred in dismissing the case, since it was for the jury to determine the weight of the evidence. People v. Bright, 77 Colo. 563, 238 P. 71 (1925).


 

Domestic violence — Current law (April 2009)

18-6-800.3 - Definitions.

Top

As used in this part 8, unless the context otherwise requires:

(1) "Domestic violence" means an act or threatened act of violence upon a person with whom the actor is or has been involved in an intimate relationship. "Domestic violence" also includes any other crime against a person, or against property, including an animal, or any municipal ordinance violation against a person, or against property, including an animal, when used as a method of coercion, control, punishment, intimidation, or revenge directed against a person with whom the actor is or has been involved in an intimate relationship.

(2) "Intimate relationship" means a relationship between spouses, former spouses, past or present unmarried couples, or persons who are both the parents of the same child regardless of whether the persons have been married or have lived together at any time.

 

Source: L. 89: Entire section added, p. 909, § 1, effective April 4. L. 94: (1) amended, p. 2020, § 1, effective June 3; entire section amended, p. 2025, § 1, effective July 1. L. 95: IP and (1) amended, p. 566, § 1, effective July 1. L. 2007: (1) amended, p. 726, § 7, effective July 1.

Top

Editor's note: This title was numbered as chapter 40, C.R.S. 1963. The substantive provisions of this title were repealed and reenacted in 1971, resulting in the addition, relocation, and elimination of sections as well as subject matter. For amendments to this title prior to 1971, consult the Colorado statutory research explanatory note beginning on page vii in the front of this volume. For a detailed comparison of this title, see the comparative tables located in the back of the index.

Editor's note: This title was repealed and reenacted in 1971. For historical information concerning the repeal and reenactment, see the editor's note following the title heading.

Cross references: For provisions relating to domestic abuse programs, see article 7.5 of title 26.

Editor's note: Subsection (1) was amended in Senate Bill 94-51. Those amendments were superseded by the amendment of the entire section in House Bill 94-1253.

Annotation

Law reviews. For article, "Injunctive Remedies for Interpersonal Violence," see 18 Colo. Law. 1743 (1989). For article, "1994 Legislature Strengthens Domestic Violence Protective Orders", see 23 Colo. Law. 2327 (1994).

Evidence of a sexual relationship is not necessary to establish the existence of an intimate relationship. People v. Disher, 224 P.3d 254 (Colo. 2010).

A sexual relationship may be an indicator, but never a necessary condition, of an intimate relationship for purposes of the Colorado domestic violence statute. The relationship must be more than that of a roommate, friend, or acquaintance, and there must be a romantic attachment or shared parental status between the parties. People v. Disher, 224 P.3d 254 (Colo. 2010).

When determining whether a relationship is an "intimate relationship," a court may take into account the following three factors: (1) The length of time the relationship has existed or did exist; (2) the nature or type of the relationship; and (3) the frequency of interaction between the parties. People v. Disher, 224 P.3d 254 (Colo. 2010).

The existence of a dating relationship indicates the kind of romantic attachment required by the statute. Whether that dating relationship was sexual in nature should not have been the determining factor. People v. Disher, 224 P.3d 254 (Colo. 2010).


 

18-6-801 - Domestic violence - sentencing.

Top

(1) (a) In addition to any sentence that is imposed upon a person for violation of any criminal law under this title, any person who is convicted of any crime, the underlying factual basis of which has been found by the court on the record to include an act of domestic violence, as defined in section 18-6-800.3 (1), or any crime against property, whether or not such crime is a felony, when such crime is used as a method of coercion, control, punishment, intimidation, or revenge directed against a person with whom the actor is or has been involved in an intimate relationship, shall be ordered to complete a treatment program and a treatment evaluation that conform with the standards adopted by the domestic violence management treatment board as required by section 16-11.8-104, C.R.S. If an intake evaluation conducted by an approved treatment program provider discloses that sentencing to a treatment program would be inappropriate, the person shall be referred back to the court for alternative disposition.

(b) The court may order a treatment evaluation to be conducted prior to sentencing if a treatment evaluation would assist the court in determining an appropriate sentence. The person ordered to undergo such evaluation shall be required to pay the cost of the treatment evaluation. If such treatment evaluation recommends treatment, and if the court so finds, the person shall be ordered to complete a treatment program that conforms with the standards adopted by the domestic violence management board as required by section 16-11.8-104, C.R.S.

(c) Nothing in this subsection (1) shall preclude the court from ordering domestic violence treatment in any appropriate case.

(2) Subsection (1) of this section shall not apply to persons sentenced to the department of corrections.

NOTE: "No Drop" Provision

(3) A person charged with the commission of a crime, the underlying factual basis of which includes an act of domestic violence as defined in section 18-6-800.3 (1), shall not be entitled to plead guilty or plead nolo contendere to an offense which does not include the domestic violence designation required in section 16-21-103, C.R.S., unless the prosecuting attorney makes a good faith representation on the record that such attorney would not be able to establish a prima facie case that the person and the alleged victim were currently or formerly involved in an intimate relationship if the defendant were brought to trial on the original domestic violence offense and upon such a finding by the court. The prosecuting attorney's record and the court's findings shall specify the relationship in the alleged domestic violence case which the prosecuting attorney is not able to prove beyond a reasonable doubt and the reasons therefor. No court shall accept a plea of guilty or nolo contendere to an offense which does not include the domestic violence designation required in section 16-21-103, C.R.S., when the facts of the case indicate that the underlying factual basis includes an act of domestic violence as defined in section 18-6-800.3 (1) unless there is a good faith representation by the prosecuting attorney that he or she would be unable to establish a prima facie case if the defendant were brought to trial on the original offense.

(4) No person accused or convicted of a crime, the underlying factual basis of which has been found by the court on the record to include an act of domestic violence, as defined in section 18-6-800.3 (1), shall be eligible for home detention in the home of the victim pursuant to section 18-1.3-105 or 18-1.3-106 or for deferred prosecution pursuant to section 18-1.3-101. Nothing in this subsection (4) is intended to prohibit a court from ordering a deferred sentence for a person accused or convicted of a crime, the underlying factual basis of which has been found by the court on the record to include an act of domestic violence, as defined in section 18-6-800.3 (1).

(5) Before granting probation, the court shall consider the safety of the victim and the victim's children if probation is granted.

(6) Nothing in this section shall preclude the ability of a municipality to enact concurrent ordinances.

(7) In the event a person is convicted in this state on or after July 1, 2000, of any offense which would otherwise be a misdemeanor, the underlying factual basis of which has been found by the court on the record to include an act of domestic violence as defined in section 18-6-800.3 (1), and that person has been three times previously convicted, upon charges separately brought and tried and arising out of separate and distinct criminal episodes, of a felony or misdemeanor or municipal ordinance violation, the underlying factual basis of which was found by the court on the record to include an act of domestic violence, the prosecuting attorney may petition the court to adjudge the person an habitual domestic violence offender, and such person shall be convicted of a class 5 felony. If the person is adjudged an habitual domestic violence offender, the court shall sentence the person pursuant to the presumptive range set forth in section 18-1.3-401 for a class 5 felony. The former convictions and judgments shall be set forth in apt words in the indictment or information.

Top

Source: L. 88: Entire part added, p. 732, § 1, effective July 1. L. 89: Entire section R&RE, p. 909, § 2, effective April 4. L. 94: (1) amended and (3) to (6) added, p. 2026, § 2, effective July 1. L. 95: (3) amended, p. 566, § 2, effective July 1. L. 2000: (7) added, p. 1011, § 1, effective July 1; (1)(a) and (1)(b) amended, p. 913, § 2, effective January 1, 2001. L. 2002: (4) and (7) amended, p. 1515, § 200, effective October 1.

Cross references: For the legislative declaration contained in the 2002 act amending subsections (4) and (7), see section 1 of chapter 318, Session Laws of Colorado 2002.

Editor's note: (1) Section 11 of chapter 229, Session Laws of Colorado 2000, provides that the act enacting subsection (7) applies to offenses committed on or after July 1, 2000. (2) Section 8 of chapter 215, Session Laws of Colorado 2000, provides that the act amending subsections (1)(a) and (1)(b) applies to sentences entered on or after January 1, 2001.

Law reviews. For article, "What Family Law Practitioners Should Know About Domestic Violence", see 19 Colo. Law. 53 (1990).


 

18-6-801.5 - Domestic violence - evidence of similar transactions.

Top

(1) The general assembly hereby finds that domestic violence is frequently cyclical in nature, involves patterns of abuse, and can consist of harm with escalating levels of seriousness. The general assembly therefore declares that evidence of similar transactions can be helpful and is necessary in some situations in prosecuting crimes involving domestic violence.

(2) In criminal prosecutions involving domestic violence in which the defendant and the victim named in the information have engaged in an intimate relationship as of the time alleged in the information, evidence of any other acts of domestic violence between the defendant and the victim named in the information, and between the defendant and other persons, constitute other acts or transactions for the purposes of this section, and the court may authorize the admission of evidence as provided in subsection (3) of this section.

(3) The proponent of evidence of other acts or transactions under this section shall advise the trial court by offer of proof of such evidence and shall specify whether the evidence is offered to show a common plan, scheme, design, identity, modus operandi, motive, or guilty knowledge or for some other purpose.

(4) Upon the offer of proof under subsection (3) of this section, the trial court shall determine whether the probative value of the evidence of similar acts or transactions is substantially outweighed by the danger of unfair prejudice to the defendant, confusion of the issues, or misleading of the jury if the evidence is allowed or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

(5) Upon admitting evidence of other acts or transactions into evidence pursuant to this section and again in the general charge to the jury, the trial court shall direct the jury as to the limited purpose for which the evidence is admitted and for which the jury may consider it.

Top

Source: L. 94 : Entire section added, p. 2020, § 2, effective June 3. L. 2001: (2) amended, p. 730, § 1, effective July 1.

Court applies People v. Spoto (795 P.2d 1314 (Colo. 1990)) test in determining admissibility of prior acts and this section does not limit admissibility of evidence of other acts to married partners. People v. Raglin, 21 P.3d 419 (Colo. App. 2000).

Evidence of prior transaction properly admitted. People v. Ramirez, 18 P.3d 822 (Colo. App. 2000


 

18-6-801.6. Domestic violence - summons and complaint.

Top

Any person completing or preparing a summons, complaint, summons and complaint, indictment, information, or application for an arrest warrant shall indicate on the face of such document whether the facts forming the basis of the alleged criminal act, if proven, could constitute domestic violence as defined in section 18-6-800.3 (1).

 

Source: L. 94: Entire section added, p. 2027, § 3, effective July 1.


 

18-6-802. Domestic violence - local board - treatment programs - liability immunity - repeal. (Repealed)

Top

Source: L. 88: Entire part added, p. 732, § 1, effective July 1. L. 89: (3)(a) amended, p. 910, § 3, effective April 4. L. 94: (1)(a) amended, p. 2656, § 140, effective July 1. L. 96: (2)(e) repealed, p. 1263, § 172, effective August 7. L. 2000: (4) added, p. 913, § 3, effective July 1.

Editor's note: Subsection (4) provided for the repeal of this section, effective January 1, 2001. (See L. 2000, p. 913.)

Cross references: For the legislative declaration contained in the 1996 act amending this section, see section 1 of chapter 237, Session Laws of Colorado 1996.


 

18-6-802.5. Domestic violence - local board - treatment programs - liability immunity.

Top

Any defendant who is sentenced to a treatment program pursuant to section 18-6-801 or who is ordered to complete an evaluation pursuant to section 18-6-801 (1) shall pay for the evaluation and treatment programs on a sliding fee basis, as provided in the standardized procedures for the treatment evaluation of domestic violence offenders and the guidelines and standards for a system of programs for the treatment of domestic violence offenders adopted by the domestic violence offender management board pursuant to section 16-11.8-103, C.R.S.

 

Source: L. 2001 : Entire section added, p. 980, § 3, effective August 8.


 

18-6-803. Commission - manual of standards for treatment of domestic violence perpetrators - repeal. (Repealed)

Top

Source: L. 88: Entire part added, p. 733, § 1, effective July 1. L. 2000: (1) amended and (5) added, p. 913, § 4, effective July 1.

Editor's note: Subsection (5) provided for the repeal of this section, effective January 1, 2001. (See L. 2000, p. 913.


 

18-6-803.5 - Crime of violation of a protection order - penalty - peace officers' duties.

Top

(1) A person commits the crime of violation of a protection order if, after the person has been personally served with a protection order that identifies the person as a restrained person or otherwise has acquired from the court or law enforcement personnel actual knowledge of the contents of a protection order that identifies the person as a restrained person, the person:

(a) Contacts, harasses, injures, intimidates, molests, threatens, or touches the protected person or protected property, including an animal, identified in the protection order or enters or remains on premises or comes within a specified distance of the protected person, protected property, including an animal, or premises or violates any other provision of the protection order to protect the protected person from imminent danger to life or health, and such conduct is prohibited by the protection order; or

(b) Except as permitted pursuant to section 18-13-126 (1) (b), hires, employs, or otherwise contracts with another person to locate or assist in the location of the protected person.

(1.5) As used in this section:

(a) "Protected person" means the person or persons identified in the protection order as the person or persons for whose benefit the protection order was issued.

(a.5) (I) "Protection order" means any order that prohibits the restrained person from contacting, harassing, injuring, intimidating, molesting, threatening, or touching any protected person or protected animal, or from entering or remaining on premises, or from coming within a specified distance of a protected person or protected animal or premises or any other provision to protect the protected person or protected animal from imminent danger to life or health, that is issued by a court of this state or a municipal court, and that is issued pursuant to:

(A) Article 14 of title 13, C.R.S., section 18-1-1001, section 19-2-707, C.R.S., section 19-4-111, C.R.S., or rule 365 of the Colorado rules of county court civil procedure;

(B) Sections 14-4-101 to 14-4-105, C.R.S., section 14-10-107, C.R.S., section 14-10-108, C.R.S., or section 19-3-316, C.R.S., as those sections existed prior to July 1, 2004;

(C) An order issued as part of the proceedings concerning a criminal municipal ordinance violation; or

(D) Any other order of a court that prohibits a person from contacting, harassing, injuring, intimidating, molesting, threatening, or touching any person, or from entering or remaining on premises, or from coming within a specified distance of a protected person or premises.

(II) For purposes of this section only, "protection order" includes any order that amends, modifies, supplements, or supersedes the initial protection order. "Protection order" also includes any restraining order entered prior to July 1, 2003, and any foreign protection order as defined in section 13-14-104, C.R.S.

(b) "Registry" means the computerized information system created in section 18-6-803.7 or the national crime information center created pursuant to 28 U.S.C. sec. 534.

(c) "Restrained person" means the person identified in the order as the person prohibited from doing the specified act or acts.

(d) (Deleted by amendment, L. 2003, p. 1003, § 6, effective July 1, 2003.)

(2) (a) Violation of a protection order is a class 2 misdemeanor; except that, if the restrained person has previously been convicted of violating this section or a former version of this section or an analogous municipal ordinance, or if the protection order is issued pursuant to section 18-1-1001, the violation is a class 1 misdemeanor.

(a.5) A second or subsequent violation of a protection order is an extraordinary risk crime that is subject to the modified sentencing range specified in section 18-1.3-501 (3).

(b) (Deleted by amendment, L. 95, p. 567, § 3, effective July 1, 1995.)

(c) Nothing in this section shall preclude the ability of a municipality to enact concurrent ordinances. Any sentence imposed for a violation of this section shall run consecutively and not concurrently with any sentence imposed for any crime which gave rise to the issuing of the protection order.

(3) (a) Whenever a protection order is issued, the protected person shall be provided with a copy of such order. A peace officer shall use every reasonable means to enforce a protection order.

(b) A peace officer shall arrest, or, if an arrest would be impractical under the circumstances, seek a warrant for the arrest of a restrained person when the peace officer has information amounting to probable cause that:

(I) The restrained person has violated or attempted to violate any provision of a protection order; and

(II) The restrained person has been properly served with a copy of the protection order or the restrained person has received actual notice of the existence and substance of such order.

(c) In making the probable cause determination described in paragraph (b) of this subsection (3), a peace officer shall assume that the information received from the registry is accurate. A peace officer shall enforce a valid protection order whether or not there is a record of the protection order in the registry.

(d) The arrest and detention of a restrained person is governed by applicable constitutional and applicable state rules of criminal procedure. The arrested person shall be removed from the scene of the arrest and shall be taken to the peace officer's station for booking, whereupon the arrested person may be held or released in accordance with the adopted bonding schedules for the jurisdiction in which the arrest is made, or the arrested person may be taken to the jail in the county where the protection order was issued. The law enforcement agency or any other locally designated agency shall make all reasonable efforts to contact the protected party upon the arrest of the restrained person. The prosecuting attorney shall present any available arrest affidavits and the criminal history of the restrained person to the court at the time of the first appearance of the restrained person before the court.

(e) The arresting agency arresting the restrained person shall forward to the issuing court a copy of such agency's report, a list of witnesses to the violation, and, if applicable, a list of any charges filed or requested against the restrained person. The agency shall give a copy of the agency's report, witness list, and charging list to the protected party. The agency shall delete the address and telephone number of a witness from the list sent to the court upon request of such witness, and such address and telephone number shall not thereafter be made available to any person, except law enforcement officials and the prosecuting agency, without order of the court.

(4) If a restrained person is on bond in connection with a violation or attempted violation of a protection order in this or any other state and is subsequently arrested for violating or attempting to violate a protection order, the arresting agency shall notify the prosecuting attorney who shall file a motion with the court which issued the prior bond for the revocation of the bond and for the issuance of a warrant for the arrest of the restrained person if such court is satisfied that probable cause exists to believe that a violation of the protection order issued by the court has occurred.

(5) A peace officer arresting a person for violating a protection order or otherwise enforcing a protection order shall not be held criminally or civilly liable for such arrest or enforcement unless the peace officer acts in bad faith and with malice or does not act in compliance with rules adopted by the Colorado supreme court.

(6) (a) A peace officer is authorized to use every reasonable means to protect the alleged victim or the alleged victim's children to prevent further violence. Such peace officer may transport, or obtain transportation for, the alleged victim to shelter. Upon the request of the protected person, the peace officer may also transport the minor child of the protected person, who is not an emancipated minor, to the same shelter if such shelter is willing to accept the child, whether or not there is a custody order or an order allocating parental responsibilities with respect to such child or an order for the care and control of the child and whether or not the other parent objects. A peace officer who transports a minor child over the objection of the other parent shall not be held liable for any damages that may result from interference with the custody, parental responsibilities, care, and control of or access to a minor child in complying with this subsection (6).

(b) For purposes of this subsection (6), "shelter" means a battered women's shelter, a friend's or family member's home, or such other safe haven as may be designated by the protected person and which is within a reasonable distance from the location at which the peace officer found the victim.

(7) The protection order shall contain in capital letters and bold print a notice informing the protected person that such protected person may either initiate contempt proceedings against the restrained person if the order is issued in a civil action or request the prosecuting attorney to initiate contempt proceedings if the order is issued in a criminal action.

(8) A protection order issued in the state of Colorado shall contain a statement that:

(a) The order or injunction shall be accorded full faith and credit and be enforced in every civil or criminal court of the United States, another state, an Indian tribe, or a United States territory pursuant to 18 U.S.C. sec. 2265;

(b) The issuing court had jurisdiction over the parties and subject matter; and

(c) The defendant was given reasonable notice and opportunity to be heard.

(9) A criminal action charged pursuant to this section may be tried either in the county where the offense is committed or in the county in which the court that issued the protection order is located, if such court is within this state.

Top

Source: L. 91: Entire section added, p. 418, § 1, effective May 31. L. 92: Entire section amended, p. 294, § 4, effective April 23; (1) and (2) amended, p. 404, § 18, effective June 3; entire section amended, p. 177, § 3, effective July 1. L. 94: (2) and (3) amended and (6) added, p. 2027, § 4, effective July 1; entire section amended, p. 2010, § 7, effective January 1, 1995. L. 95: (1), (2), and (3)(d) amended, p. 567, § 3, effective July 1. L. 96: (3)(d) amended, p. 736, § 6, effective July 1; (1.5)(d) amended, p. 1692, § 26, effective January 1, 1997. L. 98: (1.5)(b), (1.5)(d), and (3)(c) amended and (8) added, p. 1232, § 3, effective July 1; (6)(a) amended, p. 1404, § 58, effective February 1, 1999. L. 99: (1.5)(d) amended, p. 502, § 11, effective July 1. L. 2000: (1) and (1.5)(d) amended, p. 1011, § 2, effective July 1. L. 2003: Entire section amended, p. 1003, § 6, effective July 1. L. 2004: (1.5)(a.5) amended, p. 555, § 12, effective July 1; (2)(a.5) added, p. 636, § 10, effective August 4. L. 2005: (3)(d) amended and (9) added, p. 427, § 6, effective April 29. L. 2006: (1) amended, p. 1057, § 2, effective July 1. L. 2007: (1)(a) and (1.5)(a.5)(I) amended, p. 726, § 8, effective July 1. L. 2008: IP(1) amended, p. 1718, § 1, effective July 1.

 

Editor's note: (1) Amendments to this section in House Bill 92-1075 and House Bill 92-1078 were harmonized. Amendments to this section in House Bill 94-1090 and House Bill 94-1253 were harmonized. (2) Section 11 of chapter 229, Session Laws of Colorado 2000, provides that the act amending subsections (1) and (1.5)(d) applies to offenses committed on or after July 1, 2000.

(2) Section 2 of chapter 367, Session Laws of Colorado 2008, provides that the act amending the introductory portion to subsection (1) applies to offenses committed on or after July 1, 2008.

Top

Annotation

Law reviews. For article, "1994 Legislature Strengthens Domestic Violence Protective Orders", see 23 Colo. Law. 2327 (1994).

Violation may consist of more than coming within specified distance. Where defendant came within 100 feet of protected person and thereafter broke into her apartment with intent to make direct contact with her, the intent to make direct contact supplied the intent to commit a "crime" upon entry so as to support a conviction for first-degree burglary. People v. Widhalm, 991 P.2d 291 (Colo. App. 1999).

The required culpable state of mind of "knowingly" applies to all elements of the crime of violation of a restraining order. People v. Coleby, 34 P.3d 422 (Colo. 2001).


 

18-6-803.6 - Duties of peace officers and prosecuting agencies - preservation of evidence.

Top

NOTE: Shall arrest law

(1) When a peace officer determines that there is probable cause to believe that a crime or offense involving domestic violence, as defined in section 18-6-800.3 (1), has been committed, the officer shall, without undue delay, arrest the person suspected of its commission pursuant to the provisions in subsection (2) of this section, if applicable, and charge the person with the appropriate crime or offense. Nothing in this subsection (1) shall be construed to require a peace officer to arrest both parties involved in an alleged act of domestic violence when both claim to have been victims of such domestic violence. Additionally, nothing in this subsection (1) shall be construed to require a peace officer to arrest either party involved in an alleged act of domestic violence when a peace officer determines there is no probable cause to believe that a crime or offense of domestic violence has been committed. The arrested person shall be removed from the scene of the arrest and shall be taken to the peace officer's station for booking, whereupon the arrested person may be held or released in accordance with the adopted bonding schedules for the jurisdiction in which the arrest is made.

NOTE: Colorado's "Primary Aggressor" law

(2) If a peace officer receives complaints of domestic violence from two or more opposing persons, the officer shall evaluate each complaint separately to determine if a crime has been committed by one or more persons. In determining whether a crime has been committed by one or more persons, the officer shall consider the following:

(a) Any prior complaints of domestic violence;

(b) The relative severity of the injuries inflicted on each person;

(c) The likelihood of future injury to each person; and

(d) The possibility that one of the persons acted in self-defense.

(3) (a) A peace officer is authorized to use every reasonable means to protect the alleged victim or the alleged victim's children to prevent further violence. Such peace officer may transport, or obtain transportation for, the alleged victim to shelter. Upon the request of the protected person, the peace officer may also transport the minor child of the protected person, who is not an emancipated minor, to the same shelter if such shelter is willing to accept the child, whether or not there is a custody order or an order for the care and control of the child or an order allocating parental responsibilities with respect to the child and whether or not the other parent objects. A peace officer who transports a minor child over the objection of the other parent shall not be held liable for any damages that may result from interference with the custody, parental responsibilities, care, and control of or access to a minor child in complying with this subsection (3).

(b) For purposes of this subsection (3), "shelter" means a battered women's shelter, a friend's or family member's home, or such other safe haven as may be designated by the protected person and which is within a reasonable distance from the location at which the peace officer found the victim.

(4) (a) The arresting agency shall make reasonable efforts to collect and preserve any pertinent evidence until the time of final disposition of the matter, including, but not limited to, the following:

(I) Any dispatch tape recording relating to the event;

(II) Any on-scene video or audio tape recordings;

(III) Any medical records of treatment of the alleged victim or the defendant; and

(IV) Any other relevant physical evidence or witness statements.

(b) However, in the absence of bad faith, any failure to collect or preserve any evidence listed in paragraph (a) of this subsection (4) shall not be grounds to dismiss the matter.

(4.5) When a peace officer responds to a call or is otherwise responding to a report about an alleged offense involving domestic violence, as defined in section 18-6-800.3 (1), or other domestic dispute, the officer shall include in his or her written or oral report concerning such incident whether children may have seen or heard the alleged offense; except that, in the absence of bad faith, the failure of a peace officer to note that a child may have seen or heard the alleged offense shall not be grounds to dismiss the matter.

(5) A peace officer shall not be held civilly or criminally liable for acting pursuant to this section if the peace officer acts in good faith and without malice.

 

Source: L. 94: Entire section added. p. 2029, § 5, effective July 1. L. 95: (1) amended, p. 568, § 4, effective July 1. L. 98: (1) amended, p. 1231, § 2, effective July 1; (3)(a) amended, p. 1404, § 59, effective February 1, 1999. L. 2001: (4.5) added, p. 980, § 4, effective August 8.

Law reviews. For article, "1994 Legislature Strengthens Domestic Violence Protective Orders", see 23 Colo. Law. 2327 (1994).


 

18-6-803.7 - Central registry of protection orders - creation.

Top

(1) As used in this section:

(a) "Bureau" means the Colorado bureau of investigation.

(b) "Protected person" means the person or persons identified in the protection order as the person or persons for whose benefit the protection order was issued.

(b.5) (I) "Protection order" means any order that prohibits the restrained person from contacting, harassing, injuring, intimidating, molesting, threatening, or touching any protected person, or from entering or remaining on premises, or from coming within a specified distance of a protected person or premises, that is issued by a court of this state or an authorized municipal court, and that is issued pursuant to:

(A) Article 14 of title 13, C.R.S., section 18-1-1001, section 19-2-707, C.R.S., section 19-4-111, C.R.S., or rule 365 of the Colorado rules of county court civil procedure;

(B) Sections 14-4-101 to 14-4-105, C.R.S., section 14-10-107, C.R.S., section 14-10-108, C.R.S., or section 19-3-316, C.R.S., as those sections existed prior to July 1, 2004; or

(C) An order issued as part of the proceedings concerning a criminal municipal ordinance violation.

(II) "Protection order" also includes any restraining order entered prior to July 1, 2003, and any foreign protection order as described in section 13-14-104, C.R.S.

(c) "Registry" means a computerized information system.

(d) "Restrained person" means the person identified in the order as the person prohibited from doing the specified act or acts.

(e) (Deleted by amendment, L. 2003, p. 1007, § 7, effective July 1, 2003.)

(f) "Subsequent order" means an order which amends, modifies, supplements, or supersedes a protection order.

(2) (a) There is hereby created in the bureau a computerized central registry of protection orders which shall be accessible to any state law enforcement agency or to any local law enforcement agency having a terminal which communicates with the bureau. The central registry computers shall communicate with computers operated by the state judicial department.

(b) Protection orders and subsequent orders shall be entered into the registry by the clerk of the court issuing the protection order; except that orders issued pursuant to sections 18-1-1001 and 19-2-707, C.R.S., shall be entered into the registry only at the discretion of the court or upon motion of the district attorney. The clerk of the court issuing the protection order shall be responsible for updating the registry electronically in a timely manner to ensure the notice is as complete and accurate as is reasonably possible with regard to the information specified in subsection (3) of this section.

(c) The restrained person's attorney, if present at the time the protection order or subsequent order is issued, shall notify the restrained person of the contents of such order if the restrained person was absent when such order was issued.

(d) Protection orders and subsequent orders shall be placed in the registry not later than twenty-four hours after they have been issued; except that, if the court issuing the protection order or subsequent order specifies that it be placed in the registry immediately, such order shall be placed in the registry immediately.

(e) Upon reaching the expiration date of a protection order or subsequent order, if any, the bureau shall note the termination in the registry.

(f) In the event the protection order or subsequent order does not have a termination date, the clerk of the issuing court shall be responsible for noting the termination of the protection order or subsequent order in the registry.

(3) (a) In addition to any information, notice, or warning required by law, a protection order or subsequent order entered into the registry shall contain the following information, if such information is available:

(I) The name, date of birth, sex, and physical description of the restrained person to the extent known;

(II) The date the order was issued and the effective date of the order if such date is different from the date the order was issued;

(III) The names of the protected persons and their dates of birth;

(IV) If the protection order is one prohibiting the restrained person from entering in, remaining upon, or coming within a specified distance of certain premises, the address of the premises and the distance limitation;

(V) The expiration date of the protection order, if any;

(VI) Whether the restrained person has been served with the protection order and, if so, the date and time of service; and

(VII) The amount of bail and any conditions of bond which the court has set in the event the restrained person has violated a protection order.

(b) If available, the protection order or subsequent order shall contain the fingerprint-based state identification number issued by the bureau to the restrained person.

Top

Source: L. 94: Entire section added, p. 2013, § 8, effective January 1, 1995. L. 96: (1)(e) amended, p. 1692, § 27, effective January 1, 1997. L. 98: (2)(b) amended, p. 947, § 5, effective May 27; (1)(e) amended, p. 1233, § 4, effective July 1. L. 99: (1)(e) amended, p. 503, § 12, effective July 1. L. 2003: Entire section amended, p. 1007, § 7, effective July 1. L. 2004: (1)(b.5) amended, p. 556, § 13, effective July 1.

Law reviews. For article, "1994 Legislature Strengthens Domestic Violence Protective Orders", see 23 Colo. Law. 2327 (1994).


 

18-6-803.8 - Foreign protection orders. (Repealed)

Top

 

Source: L. 98: Entire section added, p. 1233, § 5, effective July 1. L. 2003: (4) amended, p. 1009, § 8, effective July 1. L. 2004: Entire section repealed, p. 554, § 5, effective July 1.


 

18-6-803.9 - Assaults and deaths related to domestic violence - report.

Top

The Colorado bureau of investigation shall prepare a report by November 1, 1995, and by November 1 of each year thereafter, to the governor, the president of the senate, and the speaker of the house of representatives on the number of assaults related to and the number of deaths caused directly by domestic violence, including, but not limited to, homicides of victims, self-defense killings of alleged perpetrators, and incidental killings of children, peace officers, persons at work, neighbors, and bystanders in the course of episodes of domestic violence.

 

Source: L. 94: Entire section added, p. 2029, § 5, effective July 1.


 

18-6-804. Repeal of part. (Repealed)

Top

Source: L. 88: Entire part added, p. 734, § 1, effective July 1. L. 91: Entire section amended, p. 399, § 1, effective March 27. L. 95: Entire section repealed, p. 569, § 9, effective July 1; entire section repealed, p. 1254, § 13, effective July 1.


 

18-6-805. Repeal of sections - repeal. (Repealed)

Top

Source: L. 95: Entire section added, p. 569, § 10, effective July 1. L. 96: (1) amended, p. 1470, § 12, effective June 1. L. 98: Entire section amended, p. 771, § 1, effective May 22. L. 99: (1) amended, p. 623, § 20, effective August 4. L. 2000: Entire section repealed, p. 914, § 5, effective July 1.


 

Commentary

Top

There is no question that thirty years ago society took too little notice of domestic violence. When police responded to domestic disturbance calls they couldn't make arrests unless they witnessed the violence or the crime was a felony. Change may have been necessary but the results, intended and unintended, are insane.

As things do in a free society, when attention was called to the problems by such pioneers as Erin Pizzey, hasty and often ill-conceived political solutions were sought based on false or untested premises. For example, all evidence that women are as violent as men in domestic situations was ignored, and current laws are based on the ideology that all men are batterers, as required to support the patriarchy, and all women are victims. As Prof. Dutton clearly shows, that assumption is wrong. Thirty years of social research unequivocally demonstrates that domestic violence is a human problem, not a gender issue.

While ideologues would have us believe that every man is a "batterer" and every woman a "victim," data from the National Crime Victimization Surveys (NCVS) clearly show that criminal domestic violence in a given year only occurs in less than 0.5% of households and affects only 0.2% of the population. While deaths due to domestic violence are tragic, a citizen is more than twenty times as likely to die from the flu than to be murdered by an intimate partner. In fact, the safest place for a woman is in her home, married to the biological father of her children. And the safest place for a child is with its biological father.

It is also well to remember, as Erin Pizzey has pointed out, that: "Any country that has tried to create a political solution to human problems has ended up with concentration camps and gulags."

This section of Colorado law is based on the irrational assumption that men will obey a law that denies them virtually every protection they and their forefathers have fought and died for. Wars, including the American Revolution, have been waged over less substantial issues of freedom than are encompassed here . For example, section 18-6-803.6 mandates that men can be torn from all the things they love most, next to life itself, without a warrant, without a hearing, and on the basis of nothing more than unsubstantiated allegations or hearsay.

If men are forced from their homes and children, they will fight. "Domestic violence" here describes governmental tyranny based on an ideology that history has shown is flawed and unworkable. The intent and purpose of these laws is to fix the blame, as with any law. But often these laws make the problem worse, and they currently lend themselves, if not encourage abuse of the law by any vindictive and vengeance-bound woman or man.

Experience has shown that 18-6-803.6 C.R.S. tends to increase the level of violence, as well as being an effective and oft-used weapon of women seeking custody of the children and possession of the house in a divorce. As the accused is guilty simply because a woman claims he is, these restraining orders have proven an ideal weapon for vindictive, vengeful, and greedy individuals with few scruples. Sickening examples of this are the hundreds of wives we've heard about who charged their husband's with domestic violence when he found out she is having an affair even though no violence was involved and he simply wants her gone.

It is estimated that one-third of divorces in Colorado presently involve allegations of domestic abuse or violence. Almost exclusively these accusations are merely a weapon to gain advantage in the divorce. And a powerful weapon it is, though sometimes the results are fatal.

The draconian and unconstitutional provisions of the present domestic violence laws have the consequence, however unintended, of making citizens afraid to call the police for help, as well-illustrated in Table 76. If fear of the police is the intent, these laws are well designed. However, they ill suit a free society under our state and federal Constitutions and bring images of gulags to mind.

The provisions of the existing domestic violence laws are more likely to incite violence than forestall it. And studies show that in many cases that is exactly what happens, particularly where the man arrested is unemployed and the couple are not married.

In a National Institute of Justice report NCJ 186194, Dugan and others (2001) have found that, following the arrest and imposition of the mandatory restraining order § 18-1-1001 C.R.S.: "Increases in the willingness of prosecutors' offices to take cases of protection order violation were associated with increases in the homicide of white married intimates, black unmarried intimates, and white unmarried females." Thus, enforcement of 18-6-803.6 C.R.S. demonstrably leads to murder in some cases. Is homicide the intended "protection" sought?

In one of the many shams associated with current practice in domestic violence, if a man pleads guilty or accepts a plea bargain, the mandatory protection order is often dropped and he is free to return home. However, if he pleads innocent, the protection order is kept in place until the trial months later. Thus, the innocent are punished while the guilty go free.

In effect, current domestic violence laws incite violence rather than quell it.

Might honoring the rights of men and providing due process work better? Toward that end we suggest ways in which the law might provide the protection needed while preserving due process and constitutionally-mandated freedoms.

The following suggested revisions would provide both due process and for the arrest and issuance of restraining orders against persons involved in domestic violence when justified.


 

Suggested revisions

Top

Proposed changes follow the format:

• Text in ordinary font is language that exists now.

Note: indicates intention or reason for proposed changes on following lines.

• Language to be removed is indicated by striking it out.

• Language to be added is indicated by text in [ non-proportional Courier font] surrounded by square brackets [ ].


 

18-1-1001 - Protection order against defendant.

Top

Note: The current mandatory protection order presumes guilt often based on nothing more than hearsay, and seldom on more than unsubstantiated allegations of an angry woman that the accused is given no chance to rebut in a fair and open hearing as none is held before issuance.

Punishment begins immediately upon the charge being filed. Further, it denies the accused any opportunity to obtain witnesses in their behalf.

There is no attempt in the current statute to provide for due process and protect the constitutional rights of the accused. And one of the shams of the current law is that if the accused is willing to plead guilty, or accept deferred judgement, the mandatory restraining order is commonly dropped and he can return to his home and children immediately. Whereas should a man defend his innocence, under current law the mandatory restraining order remains in effect until trial, or even after if an appeal is filed. Thus, the innocent are punished and the guilty go free under the current statute.

(1) [Upon presentation to the court of clear and compelling evidence of an assault by one or both persons in an intimate relationship, as defined in § 18-6-800.3 C.R.S. the court shall issue ] There is hereby created a mandatory protection order against any [all such] person [s] charged with a violation of any of the provisions of this title, which order shall remain in effect from the time that the person is [defendant is] advised of his or her rights at arraignment or the person's [accused's] first appearance before the court and informed of such order until final disposition of the action [and all sentences, probationary periods, or deferred judgement periods have been satisfactorily completed]. Such order shall restrain the person charged [accused] from [further assaulting,] harassing, molesting, intimidating, retaliating against, or tampering with any witness to or victim of the acts charged [their accuser ]. The protection order issued pursuant to this section shall be on a standardized form prescribed by the judicial department and a copy shall be provided to the protected parties.

(2) At the time of arraignment or the [accused's] person's first appearance before the court, the court shall inform the defendant of the protection order effective pursuant to this section and shall inform the defendant that a violation of such order is punishable by contempt [or arrest and incarceration as provided for in § 18-6-803.5(3)(b) C.R.S.] .

(3) Nothing in this section shall preclude the defendant [or their accuser] from applying to the court at any time for modification or dismissal of the protection order issued pursuant to this section or the district attorney from applying to the court at any time for further orders, additional provisions under the protection order, or modification or dismissal of the same. The trial court shall retain jurisdiction to enforce, modify, or dismiss the protection order until final disposition of the action. Upon motion of the district attorney, or on the court's motion to protect the alleged victim, the court may, in cases involving domestic violence as defined in section 18-6-800.3 (1), enter any of the following further orders against the defendant:

Note: Section (a) violates a citizen's Fourth Amendment right to be secure in their homes without due process based upon a warrantless arrest in violation of their Fifth and Fourteenth Amendment rights, presumes the defendant is guilty, and imposes severe punishment and hardship upon them without a trial or, ofttimes, even a hearing. Also, present law leaves the alleged "victim" exactly where the accused knows how to find them and they are in the most danger. A more foolish approach to "protecting" a woman in actual danger is hard to imagine.

[ (a) An order to vacate or stay away from the home of the victim and to stay away from any other location where the victim is likely to be found; ]

(b) An order to refrain from contact or direct or indirect communication with [ the victim their accuser. However, the accused may seek witnesses on their behalf or other information from witnesses such as documents, recordings, computer records, and like materials as may reasonably be necessary for their defense. ];

Note: Section (c) violates a citizen's Second Amendment rights without due process and imposes an often severe punishment and hardship without benefit of trial on individuals who use firearms or weapons in their employment.

(c) An order prohibiting possession or control of firearms or other weapons;

Note: Prohibition was repealed by the Twenty-First Amendment and possession of controlled substances is dealt with under other laws and regulations.

(d) An order prohibiting possession or consumption of alcohol or controlled substances; and

Note: "Any other order" is unconstitutionally broad and places no limits on what the court may order. Such orders may impose great hardship and penalties on the accused without benefit of trial on the basis of nothing more than unsubstantiated allegations or hearsay. For example, we have numerous examples of men who have been ordered to wear electronic bracelets for many months before their case was ultimately dismissed as groundless. Further, many men have reported they were held without bond for periods ranging from 5 to 28 days on the basis an electronic monitoring device was not available. Thus, the innocent are punished while frequently the guilty go free because they immediately take a plea bargain.

(e) Any other order the court deems appropriate to protect the safety of the alleged victim.

(4) Any person failing to comply with a protection order issued pursuant to this section commits the crime of violation of a protection order and may be punished as provided in section 18-6-803.5.

(5) Before a defendant is released on bail pursuant to article 4 of title 16, C.R.S., the court shall, in cases involving domestic violence as defined in section 18-6-800.3 (1), state the terms of the protection order issued pursuant to this section [, including any additional provisions added pursuant to subsection (3) of this section,] to the defendant on the record and the court shall further require the defendant to acknowledge the protection order as a condition of any bond for the release of the defendant. The prosecuting attorney shall, in such domestic violence cases, notify the alleged victim, the complainant, and the protected person of the order if such persons are not present at the time the protection order is issued.

[(a) However, a defendant may not be held under section (5) for a period of more than 48 hours without an opportunity to post bond.]

(6) The defendant or, in cases involving domestic violence as defined in section 18-6-800.3 (1), the prosecuting attorney may request a hearing before the court to modify the terms of a protection order issued pursuant to the section. Upon such a request, the court shall set a hearing and the prosecuting attorney shall send notice of the hearing to the defendant and the alleged victim. At the hearing the court shall review the terms of the protection order and any further orders entered and shall consider the modifications, if any, requested by the defendant or the prosecuting attorney.

(7) The duties of peace officers enforcing orders issued pursuant to this section shall be in accordance with section 18-6-803.5 and any rules adopted by the Colorado supreme court pursuant to said section.

(8) For purposes of this section:

(a) "Court" means the trial court or a designee of the trial court.

(a.5) "Protection order" shall include a restraining order entered pursuant to this section prior to July 1, 2003.

(b) "Until final disposition of the action" means until the case is dismissed, until the defendant is acquitted, or until the defendant completes his or her sentence. Any defendant sentenced to probation or incarceration shall be deemed to have completed his or her sentence upon discharge from probation or incarceration, as the case may be.


 

18-6-800.3 - Definitions.

Top

Note: Violence should be defined as such and limited. Time limits should be imposed. This isn't a stage play and the terms accused and accuser should be used until guilt is proven in a court of law.

The fact that domestic violence is an add on charge allows this statute to be used in all sorts of circumstances where interpersonal violence is not involved under the present definition.

Actions against property, vandalism, coercion, etc. by the accused are more properly subjects for other criminal statutes or as grounds for a civil restraining order under § 13-14-102 C.R.S.

As used in this part 8, unless the context otherwise requires:

(1) "Domestic violence" means an act or threatened act of violence [involving kicking, biting, hitting with a fist; hitting or trying to hit with an object; burning or scalding; choking or strangling; threatening with a knife, gun, or other deadly weapon; use of a knife, gun, or other deadly weapon] upon a person with whom the actor [accused] is or has been involved in an intimate relationship [for a period of at least thirty days within the previous year]. "Domestic violence" also includes any other crime against a person or against property or any municipal ordinance violation against a person or against property, when used as a method of coercion, control, punishment, intimidation, or revenge directed against a person with whom the actor is or has been involved in an intimate relationship.

(2) "Intimate relationship" means a [physical] relationship [that existed for a period of at least thirty days within the previous year] between spouses, former spouses, past or present unmarried couples, or persons who are both the parents of the same child regardless of whether the persons have been married or have lived together at any time .


 

18-6-801 - Domestic violence - sentencing.

Top

Note: There is no evidence to suggest that the treatment program presently mandated by the state has any beneficial effects upon reducing domestic violence. Research has found that only 60% of those entering the court-ordered treatment program in Colorado even complete it. No one knows how many offenders who are sentenced to the treatment program by the courts never even bother to start. It is reasonable to assume at least 10% of convicted DV offenders don't bother or can't afford to begin treatment. Thus, at most, only 50% of those sentenced complete the mandated treatment program. And those who do go through the program generally regard it with scorn and contempt.

As a result, ideologically-based treatment programs have not had any appreciable effect on recidivism rates even for those who do finish.

In some cases, where the violence is the result of a mental disorder the present treatment program is either of no value or has the potential to make the situation worse. For example, there is no known treatment for psychopaths, and treatment for borderline personality disorder, a common cause of "domestic violence" is rarely if ever of value.

Given these facts, the imposition, length, and type of treatment program should be left to the discretion of the court after a post-conviction evaluation of the offender by the probation department with the assistance and guidance of competent mental health professionals.

(1) (a) In addition to any sentence that is imposed upon a person for violation of any criminal law under this title, any person who is convicted of any crime, the underlying factual basis of which has been found by the court on the record to include an act of domestic violence, as defined in section 18-6-800.3 (1) , or any crime against property, whether or not such crime is a felony, when such crime is used as a method of coercion, control, punishment, intimidation, or revenge directed against a person with whom the actor is or has been involved in an intimate relationship, [prior to sentencing the offender] shall be ordered to complete a treatment program and a treatment evaluation [by an approved treatment program provider] that conform [s] with the standards adopted by the domestic violence management treatment board as required by section 16-11.8-104, C.R.S. [The cost of such evaluation shall be borne by the offender unless the court has found that he or she is indigent. If the treatment evaluation suggests that a program is likely to be effective for the offender, the court shall order the offender to complete such treatment as the evaluation suggests, or such other program as the court may deem necessary.] If an intake evaluation conducted by an approved treatment program provider discloses that sentencing to a treatment program would be inappropriate, the person shall be referred back to the court for alternative disposition.

Note: Sections (b) and (c) are redundant and unnecessary.

(b) The court may order a treatment evaluation to be conducted prior to sentencing if a treatment evaluation would assist the court in determining an appropriate sentence. The person ordered to undergo such evaluation shall be required to pay the cost of the treatment evaluation. If such treatment evaluation recommends treatment, and if the court so finds, the person shall be ordered to complete a treatment program that conforms with the standards adopted by the domestic violence management board as required by section 16-11.8-104, C.R.S.

(c) Nothing in this subsection (1) shall preclude the court from ordering domestic violence treatment in any appropriate case.

Note: It makes no sense to keep sending repeat offenders back through domestic violence treatment programs that have been ineffective in at least three prior cases.

[(d) Any offender found to be an habitual domestic violence offender as defined under section 18-6-801(7) shall be deemed inappropriate for any additional domestic violence treatment programs.]

(2) Subsection (1) of this section shall not apply to persons sentenced to the department of corrections.

NOTE: The following "No Drop" provision leads to the district attorneys and courts being inundated with trivial cases which neither party involved wishes to prosecute. Further, the DV offender management board has repeatedly stated that cases where the district attorney cannot prove beyond a reasonable doubt before a jury that the defendant is guilty the case should be dismissed. Unfortunately, prosecutors are now waiting until the day before or the morning of the trial to dismiss such cases. That practice is reprehensible and must be discouraged.

This section is based on the ideology that all men are "batterers" and all women are "victims," and thus women are incapable of knowing what is best for them. The presumption that all men are batterers leads to the fallacious assumption that all domestic violence cases involve a "cycle of violence" during the "honeymoon" phase of which a woman will attempt to deny the battering. While such a "cycle of violence" occasionally occurs, from available evidence it is only apparent in approximately 3% of current domestic violence cases before the courts. Conversely, scientific studies show that in most cases couple's violence de-escalates if left alone.

The most notable effect of the following provision has been a dramatic decrease in the willingness of citizens to call police during a domestic disturbance as vividly illustrated in Table 76. One of the principal criticisms of the current law is that women are treated in an infantile fashion by these provisions and all choice is taken away from them.

(3) A person charged with the commission of a crime, the underlying factual basis of which includes an act of domestic violence as defined in section 18-6-800.3 (1), shall not be entitled to plead guilty or plead nolo contendere to an offense which does not include the domestic violence designation required in section 16-21-103, C.R.S., unless the prosecuting attorney makes a good faith representation on the record that such attorney would not be able to establish a prima facie case that the person and the alleged victim were currently or formerly involved in an intimate relationship [ as defined in section 18-6-800.3(2) C.R.S ] if the defendant were brought to trial on the original domestic violence offense and upon such a finding by the court. The prosecuting attorney's record and the court's findings shall specify the relationship in the alleged domestic violence case which the prosecuting attorney is not able to prove beyond a reasonable doubt and the reasons therefor. No court shall accept a plea of guilty or nolo contendere to an offense which does not include the domestic violence designation required in section 16-21-103, C.R.S., when the facts of the case indicate that the underlying factual basis includes an act of domestic violence as defined in section 18-6-800.3 (1) unless there is a good faith representation by the prosecuting attorney that he or she would be unable to establish a prima facie case if the defendant were brought to trial on the original offense.

[(a) No prosecuting attorney shall be required to proceed with any case where domestic violence is alleged if the "victim" does not wish to proceed and there is a lack of physical evidence that an act or threatened act of violence as defined in section 18-6-800.3(1) C.R.S. occurred.]

(4) No person accused or convicted of a crime, the underlying factual basis of which has been found by the court on the record to include an act of domestic violence, as defined in section 18-6-800.3 (1), shall be eligible for home detention in the home of the victim pursuant to section 17-26-128 or 17-27.8-102, C.R.S., or for deferred prosecution pursuant to section 16-7-401, C.R.S. Nothing in this subsection (4) is intended to prohibit a court from ordering a deferred sentence for a person accused or convicted of a crime, the underlying factual basis of which has been found by the court on the record to include an act of domestic violence, as defined in section 18-6-800.3 (1).

(5) Before granting probation, the court shall consider the safety of the victim and the victim's children if probation is granted.

Note: Uniform state laws should take precedence and prevent the witch hunts presently associated with "domestic violence." Section (6) also encourages "judge shopping" when the law is misused for vengeance or to gain advantage in divorce or custody battles.

(6) Nothing in this section shall preclude the ability of a municipality to enact concurrent ordinances .

(7) In the event a person is convicted in this state on or after July 1, 2000, of any offense which would otherwise be a misdemeanor, the underlying factual basis of which has been found by the court on the record to include an act of domestic violence as defined in section 18-6-800.3 (1), and that person has been three times previously convicted, upon charges separately brought and tried and arising out of separate and distinct criminal episodes, of a felony or misdemeanor or municipal ordinance violation, the underlying factual basis of which was found by the court on the record to include an act of domestic violence, the prosecuting attorney may petition the court to adjudge the person an habitual domestic violence offender, and such person shall be convicted of a class 5 felony. If the person is adjudged an habitual domestic violence offender, the court shall sentence the person pursuant to the presumptive range set forth in section 18-1-105 for a class 5 felony. The former convictions and judgments shall be set forth in apt words in the indictment or information.


 

18-6-801.5 - Domestic violence - evidence of similar transactions.

Top

Note: Research does not support the following statement and it should be deleted.

(1) The general assembly hereby finds that domestic violence is frequently cyclical in nature, involves patterns of abuse, and can consist of harm with escalating levels of seriousness. The general assembly therefore declares that evidence of similar transactions can be helpful and is necessary in some situations in prosecuting crimes involving domestic violence.

Note: Some time limit is essential in section (2) and the accepted standard is the defined statute of limitations for a given offense. At present "similar transactions" can, and does refer to incidents decades old.

(2) In criminal prosecutions involving domestic violence in which the defendant and the [alleged] victim named in the information have engaged in an intimate relationship [, as defined in § 18-6-800.3(2), ] as of the time alleged in the information, evidence [, other than hearsay,] of any other acts of domestic violence between the defendant and the victim [his or her accuser occurring within the statute of limitations defined in § 16-5-401 C.R.S. for the alleged acts] named in the information, and between the defendant and other persons, constitute other acts or transactions for the purposes of this section, and the court may authorize the admission of evidence as provided in subsection (3) of this section.

(3) The proponent of evidence of other acts or transactions under this section shall advise the trial court by offer of proof of such evidence and shall specify whether the evidence is offered to show a common plan, scheme, design, identity, modus operandi, motive, or guilty knowledge or for some other purpose.

(4) Upon the offer of proof under subsection (3) of this section, the trial court shall determine whether the probative value of the evidence of similar acts or transactions is substantially outweighed by the danger of unfair prejudice to the defendant, confusion of the issues, or misleading of the jury if the evidence is allowed or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

(5) Upon admitting evidence of other acts or transactions into evidence pursuant to this section and again in the general charge to the jury, the trial court shall direct the jury as to the limited purpose for which the evidence is admitted and for which the jury may consider it.


 

18-6-803.5 - Crime of violation of a restraining order - penalty - peace officers' duties.

Top

Note: In the many small communities of Colorado it is virtually impossible for a person to avoid violating restraining orders. We are also aware of many instances where women have deliberately set traps for men, or simply passed them going the other way on the road , and claimed the order was violated. Also, due process should be preserved and the presumption of innocence maintained.

We also have far too many examples where men have been arrested for violating protection orders they had no idea existed. Personal service of such orders must be required.

It is also noteworthy that the Colorado legislature has revised § 18-6-803.5 virtually every session since it is was first passed in 1991.

(1) A person commits the crime of violation of a protection order if such person [deliberately and intentionally] contacts, harasses, injures, intimidates, molests, threatens, or touches any protected person or enters or remains on premises or comes within a specified distance of a protected person or premises or violates any other provision of a protection order to protect the protected person from imminent danger to life or health, and such conduct is prohibited by a protection order, after such person has been personally served with any such order or otherwise has acquired from the court actual knowledge of the contents of any such order .

(1.5) As used in this section:

(a) "Protected person" means the person or persons identified in the protection order as the person or persons for whose benefit the protection order was issued.

(a.5) (I) "Protection order" means any order that prohibits the restrained person from contacting, harassing, injuring, intimidating, molesting, threatening, or touching any protected person, or from entering or remaining on premises, or from coming within a specified distance of a protected person or premises or any other provision to protect the protected person from imminent danger to life or health, that is issued by a court of this state or a municipal court, and that is issued pursuant to:

(A) Article 14 of title 13, C.R.S., section 18-1-1001, section 19-2-707, C.R.S., section 19-4-111, C.R.S., or rule 365 of the Colorado rules of county court civil procedure;

(B) Sections 14-4-101 to 14-4-105, C.R.S., section 14-10-107, C.R.S., section 14-10-108, C.R.S., or section 19-3-316, C.R.S., as those sections existed prior to July 1, 2004;

(C) An order issued as part of the proceedings concerning a criminal municipal ordinance violation; or

(D) Any other order of a court that prohibits a person from contacting, harassing, injuring, intimidating, molesting, threatening, or touching any person, or from entering or remaining on premises, or from coming within a specified distance of a protected person or premises.

(II) For purposes of this section only, "protection order" includes any order that amends, modifies, supplements, or supersedes the initial protection order. "Protection order" also includes any restraining order entered prior to July 1, 2003, and any foreign protection order as defined in section 13-14-104, C.R.S.

(b) "Registry" means the computerized information system created in section 18-6-803.7 or the national crime information center created pursuant to 28 U.S.C. sec. 534.

(c) "Restrained person" means the person identified in the order as the person prohibited from doing the specified act or acts.

(d) (Deleted by amendment, L. 2003, p. 1003, § 6, effective July 1, 2003.)

(2) (a) Violation of a protection order is a class 2 misdemeanor; except that, if the restrained person has previously been convicted of violating this section or a former version of this section or an analogous municipal ordinance, or if the protection order is issued pursuant to section 18-1-1001, the violation is a class 1 misdemeanor.

(a.5) A second or subsequent violation of a protection order is an extraordinary risk crime that is subject to the modified sentencing range specified in section 18-1.3-501 (3).

(b) (Deleted by amendment, L. 95, p. 567, 3, effective July 1, 1995.)

Note: The first sentence in (c) encourages "judge shopping" and one often finds multiple restraining orders issued by different jurisdictions placing the individual in multiple jeopardy for the same alleged incident in violation of the Fifth Amendment. Restraining orders should thus be issued exclusively in the county court where the accuser resides.

(c) Nothing in this section shall preclude the ability of a municipality to enact concurrent ordinances. Any sentence imposed for a violation of this section shall run consecutively and not concurrently with any sentence imposed for any crime which gave rise to the issuing of the protection order.

Note: § 18-1-1001(1) requires that a copy of the restraining order be given to the protected person. Redundant and confusing language here.

(3) (a) Whenever a protection order is issued, the protected person shall be provided with a copy of such order. A peace officer shall use every reasonable means to enforce a protection order.

(b) A peace officer shall arrest, or, if an arrest would be impractical under the circumstances, seek a warrant for the arrest of a restrained person when the peace officer has information amounting to probable cause that:

Note: As mentioned above, in the many small Colorado towns and villages it is virtually impossible to avoid accidentally violating some term of these restraining orders. We have numerous stories of men being arrested because the woman saw him in the grocery store, or at the gas station, or going the other way on the highway.

In other cases men have been arrested because the speed dialer on their cell phone was accidentally triggered or, in one case, a virus infected a man's computer at work and sent messages to everyone on his mailing list, including his ex-wife.

(I) The restrained person has [knowingly and willfully] violated or attempted to violate any provision of a protection order; and

(II) The restrained person has been properly served with a copy of the protection order or the restrained person has received actual notice of the existence and substance of such order .

(c) In making the probable cause determination described in paragraph (b) of this subsection (3), a peace officer shall assume that the information received from the registry is accurate. A peace officer shall enforce a valid protection order whether or not there is a record of the protection order in the registry.

(d) The arrest and detention of a restrained person is governed by applicable constitutional and applicable state rules of criminal procedure. The arrested person shall be removed from the scene of the arrest and shall be taken to the peace officer's station for booking, whereupon the arrested person may be held or released in accordance with the adopted bonding schedules for the jurisdiction in which the arrest is made, or the arrested person may be taken to the jail in the county where the protection order was issued. The law enforcement agency or any other locally designated agency shall make all reasonable efforts to contact the protected party upon the arrest of the restrained person. The prosecuting attorney shall present any available arrest affidavits and the criminal history of the restrained person to the court at the time of the first appearance of the restrained person before the court.

Note: Section (e) violates Sixth Amendment rights of the accused to be confronted with the witnesses against him.

(e) The arresting agency arresting the restrained person shall forward to the issuing court a copy of such agency's report, a list of witnesses to the violation, and, if applicable, a list of any charges filed or requested against the restrained person. The agency shall give a copy of the agency's report, witness list, and charging list to the protected party [and to the defendant or their attorney]. The agency shall delete the address and telephone number of a witness from the list sent to the court upon request of such witness, and such address and telephone number shall not thereafter be made available to any person, except law enforcement officials and the prosecuting agency, without order of the court.

(4) If a restrained person is on bond in connection with a violation or attempted violation of a protection order in this or any other state and is subsequently arrested for violating or attempting to violate a protection order, the arresting agency shall notify the prosecuting attorney who shall file a motion with the court which issued the prior bond for the revocation of the bond and for the issuance of a warrant for the arrest of the restrained person if such court is satisfied that probable cause exists to believe that a [deliberate and intentional] violation of the protection order issued by the court has occurred.

(5) A peace officer arresting a person for violating a protection order or otherwise enforcing a protection order shall not be held criminally or civilly liable for such arrest or enforcement unless the peace officer acts in bad faith and with malice or does not act in compliance with rules adopted by the Colorado supreme court.

Note: Peace officers should not be given authority to ignore court orders. Nor should they be used as weapons in a custody dispute.

(6) (a) A peace officer is authorized to use every reasonable means to protect the alleged victim or the alleged victim's children to prevent further violence [ if so requested or if in the officer's best judgement such protection is necessary. A citizen offered such protection may decline by signing a release of liability for the officer ]. Such peace officer may transport, or obtain transportation for, the alleged victim to shelter [at public expense if need be] . Upon the request of the protected person, the peace officer may also transport the minor child of the protected person, who is not an emancipated minor, to the same shelter if such shelter is willing to accept the child, whether or not there is a custody order or an order allocating parental responsibilities with respect to such child or an order for the care and control of the child and whether or not the other parent objects [ unless there exists a custody order presented to the officer designating the other parent as having care and control of the child(ren) ]. A peace officer who transports a minor child over the objection of the other parent [in the absence of a custody order] shall not be held liable for any damages that may result from interference with the custody, parental responsibilities, care, and control of or access to a minor child in complying with this subsection (6).

Note: Present language in section (b) discriminates on the basis of sex in violation of Article II, Section 29 of the Colorado Constitution.

(b) For purposes of this subsection (6), "shelter" means a battered women's shelter [for victims of abuse], a friend's or family member's home, or such other safe haven as may be designated by the protected person and which is within a reasonable distance from the location at which the peace officer found the victim. [If no such facility exists or has available accommodations within 50 miles of the alleged victim's home an officer is authorized to obtain accommodations at a private facility such as a motel at the public expense if need be.]

(7) The protection order shall contain in capital letters and bold print a notice informing the protected person that such protected person may either initiate contempt proceedings against the restrained person if the order is issued in a civil action or request the prosecuting attorney to initiate contempt proceedings if the order is issued in a criminal action.

(8) A protection order issued in the state of Colorado shall contain a statement that:

(a) The order or injunction shall be accorded full faith and credit and be enforced in every civil or criminal court of the United States, another state, an Indian tribe, or a United States territory pursuant to 18 U.S.C. sec. 2265;

(b) The issuing court had jurisdiction over the parties and subject matter; and

Note: The following language is invalid if the restraining order is issued ex parte.

(c) The defendant was given reasonable notice and opportunity to be heard.

Note: "Judge shopping" is again an issue in the following section. Jurisdiction should be limited to the county or district court where the petitioner for the order lives at the time the protection order is issued unless it is a foreign protection order.

(9) A criminal action charged pursuant to this section may be tried either in the county where the offense is committed or in the county in which the [shall be tried in the county or district] court that issued the protection order is located, if such court is within this state. [If the protection order was issued outside this state, the case shall be tried in the county or district court where the offense was committed.]


 

18-6-803.6. Duties of peace officers and prosecuting agencies - preservation of evidence.

Top

Note: Mandatory arrest is both unworkable and unconstitutional. Police don't like it because they see the abuses of the law first hand. They feel constrained to make arrests they ordinarily wouldn't make that offends their often keen sense of justice. The proposed revisions gives a peace officer discretion to arrest if violence has or is likely to occur.

While the current language does require determination of "probable cause" many of these cases are "he said/she said" and if she said he hit her or shoved her it is usually taken as probable cause that domestic violence has occurred. The courts then become clogged with trivial cases while severe cases are lost in the maze and violent offenders slip though the system while children and families are all too often destroyed by nothing more than a family argument.

We also have many stories of arrests based on nothing more than the neighbors heard a loud argument. Thus, the peace officer should be required to make his own investigation, as almost all of them do already, and options as to what action he can take based on his investigation.

(1) When a peace officer determines [ by personal observation ] that there is probable cause to believe that a crime or offense involving domestic violence, as defined in section 18-6-800.3 (1), has been committed, the officer [ may arrest the person or persons present involved in such acts if the officer determines there is probable cause to believe that such violence has occurred, or is likely to shortly occur if no action is taken. If the alleged offender is not present, and probable cause is found that a crime was committed by the person or persons now absent, the officer shall promptly seek a warrant for their arrest.] shall, without undue delay, arrest the person suspected of its commission pursuant to the provisions in subsection (2) of this section, if applicable, and charge the person with the appropriate crime or offense. Nothing in this subsection (1) shall be construed to require a peace officer to arrest both parties involved in an alleged act of domestic violence when both claim to have been victims of such domestic violence.

[(a) If, when a peace officer arrives there is no evidence to suggest continued physical danger to life or property, but there is evidence other than hearsay that domestic violence, as defined in § 18-6-800.3 C.R.S. , may have been occurring, in lieu of an arrest the officer may issue a summons for all parties present to appear before a magistrate within three (3) days for a hearing as to whether charges should be filed. If one of the parties is not present the officer may follow standard procedures for delivery of a summons and define a hearing at a date later than three (3) days unless the officer determines that an arrest warrant is justified by the circumstances, in which case the officer shall promptly seek said warrant.]

[(b)] Additionally, n [N] othing in this subsection (1) shall be construed to require a peace officer to arrest [or issue a summons to] either party involved in an alleged act of domestic violence when a peace officer determines there is no probable cause to believe that a crime or offense of domestic violence has been committed. [ In determining probable cause the officer shall first determine that a crime under Colorado statutes was, in fact, committed (actus reus) and that the offender acted knowingly, willfully, and intentionally (mens rea) to commit that crime.] The arrested person shall be removed from the scene of the arrest and shall be taken to the peace officer's station for booking, whereupon the arrested person may be held or released in accordance with the adopted bonding schedules for the jurisdiction in which the arrest is made.

NOTE: Research, now replicated in over a hundred studies, shows that both parties are violent in 50% of domestic cases. Thus, the following section regarding determination of a "primary aggressor" requires a peace officer to act as both judge and jury, rather than an investigator. That is not the function of peace officers. Thus, the following section should be repealed.

(2) If a peace officer receives complaints of domestic violence from two or more opposing persons, the officer shall evaluate each complaint separately to determine if a crime has been committed by one or more persons. In determining whether a crime has been committed by one or more persons, the officer shall consider the following:

(a) Any prior complaints of domestic violence;

(b) The relative severity of the injuries inflicted on each person;

(c) The likelihood of future injury to each person; and

(d) The possibility that one of the persons acted in self-defense.

NOTE: Officers should not be given authority to ignore or override court orders or be able to force innocent citizens to leave their homes against their will. However, the peace officer should not be held liable if a citizen declines protection and the citizen is later injured.

(3) (a) A peace officer is authorized to use every reasonable means to protect the [an] alleged victim or the alleged victim's children to prevent further violence [if so requested or if in the officer's best judgement such protection is necessary. A citizen offered such protection may decline by signing a release of liability for the officer]. Such peace officer may transport, or obtain transportation for, [at public expense if need be for] the alleged victim to shelter. Upon the request of the protected person, the peace officer may also transport the minor child of the protected person , [alleged victim] who is not an emancipated minor, to the same shelter if such shelter is willing to accept the child, whether or not there is a custody order or an order for the care and control of the child or an order allocating parental responsibilities with respect to the child and whether or not the other parent objects [unless there exists a custody order presented to the officer designating the other parent as having care and control of the child(ren).] A peace officer who transports a minor child over the objection of the other parent [in the absence of a custody order] shall not be held liable for any damages that may result from interference with the custody, parental responsibilities, care, and control of or access to a minor child in complying with this subsection (3).

Note: The current section (b) needlessly discriminates on the basis of sex in violation of Article II, Section 29 of the Colorado Constitution.

(b) For purposes of this subsection (3), "shelter" means a [ battered women's shelter for victims of abuse ], a friend's or family member's home, or such other safe haven as may be designated by the protected person and which is within a reasonable distance from the location at which the peace officer found the victim. [ If no such facility exists or has available accommodations within 50 miles of the alleged victim's home an officer is authorized to obtain accommodations at a private facility such as a motel at the public expense if need be. ]

(4) (a) [ The If an arrest is justified by personal observations of the peace officer, the ] arresting agency shall make reasonable efforts to collect and preserve any pertinent evidence until the time of final disposition of the matter, including, but not limited to, the following:

(I) Any dispatch tape recording relating to the event;

(II) Any on-scene video or audio tape recordings;

(III) Any medical records of treatment of the alleged victim or the defendant; and

(IV) Any other relevant physical evidence or witness statements.

Note: Once collected, officers and prosecutors should be bound to preserve evidence. Also, we have seen a number of cases where evidence was withheld from the defendant.

(b) However, in the absence of bad faith, any failure to collect or preserve any evidence listed in paragraph (a) of this subsection (4) shall not be grounds to dismiss the matter.

(4.5) When a peace officer responds to a call or is otherwise responding to a report about an alleged offense involving domestic violence, as defined in section 18-6-800.3 (1), or other domestic dispute, the officer shall include in his or her written or oral report concerning such incident whether children may have seen or heard the alleged offense; except that, in the absence of bad faith, the failure of a peace officer to note that a child may have seen or heard the alleged offense shall not be grounds to dismiss the matter.

(5) A peace officer shall not be held civilly or criminally liable for acting pursuant to this section if the peace officer acts in good faith and without malice.


 

18-6-803.9 - Assaults and deaths related to domestic violence - report.

Top

The Colorado bureau of investigation shall prepare a report by November 1, 1995, and by November 1 of each year thereafter, to the governor, the president of the senate, and the speaker of the house of representatives on the number of assaults related to and the number of deaths caused directly by domestic violence, including, but not limited to, homicides of victims, self-defense killings of alleged perpetrators, and incidental killings of children, peace officers, persons at work, neighbors, and bystanders in the course of episodes of domestic violence.

[The report produced under this section shall be published in full and clearly linked on the Colorado Bureau of Investigation Web site no later than December 31 of the same year.]

Top


 

| EJF Home | Join the EJF | Comments? | Get EJF newsletter | Newsletters |

| DV Home | Abstract | Contents | Authors and Site Map | Tables | Index | Bibliography |

 

| Chapter 14 — Applicable Colorado Laws |

| Next — Perjury |

| Back— Criminal Mischief |


 

This site is supported and maintained by the Equal Justice Foundation.

Last modified 12/20/16