can a diary entry be used as an admission of guilt for rape?

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can a diary entry be used as an admission of guilt for rape?

if a 16 year old girl had sex with a 26 year old man and she wrote it in her diary can that be used as evidence for rape?

Asked on April 27, 2009 under Criminal Law, Colorado

Answers:

MD, Member, California Bar / FreeAdvice Contributing Attorney

Answered 13 years ago | Contributor

Umm, yes in many circumstances.  Did the mother or father find it? Did the mother or father confront the 16 year old about or the 26 year old?

In Colorado, sexaul assault laws are pretty as far as the age of the victim and perpetrator. See the statute below.  If you have been charged with this crime, contact a lawyer immediately. If you think you are about to be arrested, contact a lawyer immediately. Try www.attorneypages.com or the Colorado State Bar.

   
 
 

18-3-402. Sexual assault.

 
 
 

   
 
 

(1) Any actor who knowingly inflicts sexual intrusion or sexual penetration on a victim commits sexual assault if:

 
 
 
   
 
 

(a) The actor causes submission of the victim by means of sufficient consequence reasonably calculated to cause submission against the victim's will; or

 
 
 
   
 
 

(b) The actor knows that the victim is incapable of appraising the nature of the victim's conduct; or

 
 
 
   
 
 

(c) The actor knows that the victim submits erroneously, believing the actor to be the victim's spouse; or

 
 
 
   
 
 

(d) At the time of the commission of the act, the victim is less than fifteen years of age and the actor is at least four years older than the victim and is not the spouse of the victim; or

 
 
 
   
 
 

(e) At the time of the commission of the act, the victim is at least fifteen years of age but less than seventeen years of age and the actor is at least ten years older than the victim and is not the spouse of the victim; or

 
 
 
   
 
 

(f) The victim is in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over the victim and uses this position of authority to coerce the victim to submit, unless the act is incident to a lawful search; or

 
 
 
   
 
 

(g) The actor, while purporting to offer a medical service, engages in treatment or examination of a victim for other than a bona fide medical purpose or in a manner substantially inconsistent with reasonable medical practices; or

 
 
 
   
 
 

(h) The victim is physically helpless and the actor knows the victim is physically helpless and the victim has not consented.

 
 
 
   
 
 

(2) Sexual assault is a class 4 felony, except as provided in subsections (3), (3.5), (4), and (5) of this section.

 
 
 
   
 
 

(3) If committed under the circumstances of paragraph (e) of subsection (1) of this section, sexual assault is a class 1 misdemeanor and is an extraordinary risk crime that is subject to the modified sentencing range specified in section 18-1.3-501 (3).

 
 
 
   
 
 

(3.5) Sexual assault is a class 3 felony if committed under the circumstances described in paragraph (h) of subsection (1) of this section.

 
 
 
   
 
 

(4) Sexual assault is a class 3 felony if it is attended by any one or more of the following circumstances:

 
 
 
   
 
 

(a) The actor causes submission of the victim through the actual application of physical force or physical violence; or

 
 
 
   
 
 

(b) The actor causes submission of the victim by threat of imminent death, serious bodily injury, extreme pain, or kidnapping, to be inflicted on anyone, and the victim believes that the actor has the present ability to execute these threats; or

 
 
 
   
 
 

(c) The actor causes submission of the victim by threatening to retaliate in the future against the victim, or any other person, and the victim reasonably believes that the actor will execute this threat. As used in this paragraph (c), "to retaliate" includes threats of kidnapping, death, serious bodily injury, or extreme pain; or

 
 
 
   
 
 

(d) The actor has substantially impaired the victim's power to appraise or control the victim's conduct by employing, without the victim's consent, any drug, intoxicant, or other means for the purpose of causing submission.

 
 
 
   
 
 

(e) (Deleted by amendment, L. 2002, p. 1578, § 2, effective July 1, 2002.)

 
 
 
   
 
 

(5) (a) Sexual assault is a class 2 felony if any one or more of the following circumstances exist:

 
 
 
   
 
 

(I) In the commission of the sexual assault, the actor is physically aided or abetted by one or more other persons; or

 
 
 
   
 
 

(II) The victim suffers serious bodily injury; or

 
 
 
   
 
 

(III) The actor is armed with a deadly weapon or an article used or fashioned in a manner to cause a person to reasonably believe that the article is a deadly weapon or represents verbally or otherwise that the actor is armed with a deadly weapon and uses the deadly weapon, article, or representation to cause submission of the victim.

 
 
 
   
 
 

(b) (I) If a defendant is convicted of sexual assault pursuant to this subsection (5), the court shall sentence the defendant in accordance with section 18-1.3-401 (8) (e). A person convicted solely of sexual assault pursuant to this subsection (5) shall not be sentenced under the crime of violence provisions of section 18-1.3-406 (2). Any sentence for a conviction under this subsection (5) shall be consecutive to any sentence for a conviction for a crime of violence under section 18-1.3-406.

 
 
 
   
 
 

(II) The provisions of this paragraph (b) shall apply to offenses committed prior to November 1, 1998.

 
 
 
   
 
 

(6) Any person convicted of felony sexual assault committed on or after November 1, 1998, under any of the circumstances described in this section shall be sentenced in accordance with the provisions of part 10 of article 1.3 of this title.

 
 
 

   
 
 

Source: L. 75: Entire part R&RE, p. 628, § 1, effective July 1. L. 77: (1) amended, p. 962, § 15, effective July 1. L. 83: IP(1) amended, p. 698, § 1, effective July 1. L. 85: (2) R&RE and (3) and (4) amended, pp. 666, 667, §§ 1, 2, effective July 1. L. 95: (4) amended, p. 1252, § 9, effective July 1. L. 98: (4) amended, p. 1293, § 13, effective November 1. L. 2000: Entire section R&RE, p. 698, § 18, effective July 1. L. 2002: (1)(g), (2), and (4)(e) amended and (1)(h) and (3.5) added, p. 1578, §§ 1, 2, effective July 1; (5)(b)(I) and (6) amended, p. 1512, § 189, effective October 1. L. 2004: (3) and (6) amended, p. 635, § 5, effective August 4.

 
 
 

   
 
 

Editor's note: This section was contained in a part that was repealed and reenacted in 1975. Provisions of this section, as it existed in 1975, are similar to those contained in 18-3-401 as said section existed in 1974, the year prior to the repeal and reenactment of this part.

 
 
 

   
 
 

Cross references: For the legislative declaration contained in the 2002 act amending subsections (5)(b)(I) and (6), see section 1 of chapter 318, Session Laws of Colorado 2002.

 
 
 

 
   
 
 ANNOTATION 
 
 

 
Analysis
 
I. General Consideration.
II. Elements of Offense.
III. Trial and Prosecution.
     A. In General.
     B. Indictment or Information.
     C. Evidence.
     D. Jury.
     E. Instructions.
IV. Verdict and Sentence.
 
   
 
 I. GENERAL CONSIDERATION. 
 
 
   
 
 

Am. Jur.2d. See 65 Am. Jur.2d, Rape, §§ 1-10.

 
 
 
   
 
 

C.J.S. See 75 C.J.S., Rape, §§ 1, 4, 15-25.

 
 
 
   
 
 

Law reviews. For article, "Criminality of Voluntary Sexual Acts in Colorado", see 40 U. Colo. L. Rev. 268 (1968). For article, "Reform Rape Legislation: A New Standard of Sexual Responsibility", see 49 U. Colo. L. Rev. 185 (1978). For article, "Mens Rea and the Colorado Criminal Code", see 52 U. Colo. L. Rev. 167 (1981). For comment, "Warning Bell: The Inherent Difficulties of Responding to Student-on-Student Sexual Harassment in Colorado Middle Schools", see 76 U. Colo. L. Rev. 813 (2005).

 
 
 
   
 
 

Annotator's note. Since § 18-3-402 is similar to § 18-3-402 as it existed prior to its 2000 repeal and reenactment, and former § 18-3-402 is similar to former § 18-3-401, as it existed prior to the 1975 revision of this part, and § 40-2-25, C.R.S. 1963, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.

 
 
 
   
 
 

This section is not unconstitutionally vague where it sets out the act, the requisite mental state, and the content of the threat used to force the victim's submission, and each of these elements is defined. People v. Thatcher, 638 P.2d 760 (Colo. 1981).

 
 
 
   
 
 

This section does not violate equal protection. Putting a victim of sexual assault in fear -- and in danger -- of losing life and limb is a graver and more morally reprehensible act than subjecting the victim to lesser threats. The two kinds of threats are constitutionally distinguishable. Statutes proscribing acts based on this distinction do not violate equal protection. People v. Thatcher, 638 P.2d 760 (Colo. 1981).

 
 
 
   
 
 

Prohibition against double punishment for same criminal act is not violated where a defendant is found guilty of first degree kidnapping and first degree sexual assault for the same criminal episode. People v. Molina, 41 Colo. App. 128, 584 P.2d 634 (1978).

 
 
 
   
 
 

It is clear that the general assembly intended to impose a more severe punishment in situations in which more than one person commits the sexual assault. People v. Osborne, 973 P.2d 666 (Colo. App. 1998).

 
 
 
   
 
 

Rape and incest were separate and distinct crimes with certain different elements essential to their proof; either or both of these crimes may be charged in an appropriate factual situation. McGee v. People, 160 Colo. 46, 413 P.2d 901 (1966).

 
 
 
   
 
 

Before July 1, 1977, "knowingly" was not statutory element of first degree sexual assault, and it was not necessary, therefore, to include that factor in the definition of the crime, so long as the general intent factor was covered elsewhere in the instruction. People v. Mattas, 44 Colo. App. 139, 618 P.2d 675 (1980), aff'd, 645 P.2d 254 (Colo. 1982).

 
 
 
   
 
 

Merger doctrine inapplicable to convictions for kidnapping, assault, and robbery. The merger doctrine does not apply to a single transaction resulting in convictions under § 18-3-301 (1)(a), this section, and § 18-4-301 (1). People v. Bridges, 199 Colo. 520, 612 P.2d 1110 (1980).

 
 
 
   
 
 

For lesser included offense of crime of rape, see People v. Futamata, 140 Colo. 233, 343 P.2d 1058 (1959); People v. Barger, 191 Colo. 152, 550 P.2d 1281 (1976); People v. Hansen, 191 Colo. 175, 551 P.2d 710 (1976).

 
 
 
   
 
 

Section 18-3-409 and this section are severable so that even if the former were invalidated, the latter would still be capable of enforcement. People v. Brown, 632 P.2d 1025 (Colo. 1981).

 
 
 
   
 
 

Even if the defendant's 18-year-old wife could not be prosecuted for having sex with a 15-year-old girl, the defendant could still be prosecuted for photographing his wife with the girl pursuant to § 18-6-403. People v. Campbell, 94 P.3d 1186 (Colo. App. 2004).

 
 
 
   
 
 

Victim's submission to assault insufficient concession for first degree kidnapping. Proof of the victim's submission to a sexual assault is not sufficient per se to establish the concession required for first degree kidnapping. People v. Bridges, 199 Colo. 520, 612 P.2d 1110 (1980).

 
 
 
   
 
 

Voluntary intoxication not defense. The mental culpability requirement of both second degree kidnapping and first degree sexual assault is "knowingly"; therefore, they are, by statutory definition, general intent crimes and voluntary intoxication is not a defense to either crime. People v. Vigil, 43 Colo. App. 121, 602 P.2d 884 (1979).

 
 
 
   
 
 

For constitutionality of former statute relating to deviate sexual intercourse by force or its equivalent, see People v. Beaver, 190 Colo. 554, 549 P.2d 1315 (1976).

 
 
 
   
 
 

For lesser included offense of former crime of deviate sexual intercourse by force or its equivalent, see People v. Barger, 191 Colo. 152, 550 P.2d 1281 (1976).

 
 
 
   
 
 

For cases construing former statute relating to deviate sexual intercourse by force or its equivalent, see Martin v. People, 114 Colo. 120, 162 P.2d 597 (1945); Huerta v. People, 168 Colo. 276, 450 P.2d 648 (1969); White v. People, 177 Colo. 386, 494 P.2d 585 (1972).

 
 
 
   
 
 

The offenses of first and second degree sexual assault are mutually exclusive. Second degree sexual assault is not a lesser included offense of the crime of first degree sexual assault. People v. Shields, 822 P.2d 15 (Colo. 1991) (reversing People v. Silburn, 807 P.2d 1167 (Colo. App. 1990)).

 
 
 
   
 
 

There is no merger between what was formerly first degree sexual assault and second degree assault even if both involved the proof of serious bodily injury. Although the infliction of serious bodily injury for purposes of the sexual assault statute raised the class of felony for which one could be convicted, it was not an element of the offense itself. People v. Martinez, 32 P.3d 520 (Colo. App. 2001).

 
 
 
   
 
 

The aggravators found in subsection (4) apply to attempted sexual assaults in addition to completed sexual assaults. People v. King, 151 P.3d 594 (Colo. App. 2006).

 
 
 
   
 
 

Applied in People ex rel. VanMeveren v. District Court, 195 Colo. 1, 575 P.2d 405 (1978); People v. Reynolds, 195 Colo. 386, 578 P.2d 647 (1978); People v. McKenna, 196 Colo. 367, 585 P.2d 275 (1978); People v. Blalock, 197 Colo. 320, 592 P.2d 406 (1979); People v. Jacobs, 198 Colo. 75, 596 P.2d 1187 (1979); People v. Mikkleson, 42 Colo. App. 77, 593 P.2d 975 (1979); People v. Osborn, 42 Colo. App. 376, 599 P.2d 937 (1979); People v. DeLeon, 44 Colo. App. 126, 613 P.2d 639 (1980); People v. Frysig, 628 P.2d 1004 (Colo. 1981); People v. Williams, 628 P.2d 1011 (Colo. 1981); People v. Francis, 630 P.2d 82 (Colo. 1981); People v. Jordan, 630 P.2d 613 (Colo. 1981); People v. Martinez, 634 P.2d 26 (Colo. 1981); People v. Anderson, 637 P.2d 354 (Colo. 1981); People v. Smith, 638 P.2d 1 (Colo. 1981); People v. Mack, 638 P.2d 257 (Colo. 1981); People v. Evans, 630 P.2d 94 (Colo. App. 1981); People v. Crespin, 631 P.2d 1144 (Colo. App. 1981); People v. Hamling, 634 P.2d 1023 (Colo. App. 1981); People v. Sharpless, 635 P.2d 896 (Colo. App. 1981); People v. Flowers, 644 P.2d 916 (Colo. 1982); People v. Constant, 645 P.2d 843 (Colo. 1982); People v. Phillips, 652 P.2d 575 (Colo. 1982); People v. White, 656 P.2d 690 (Colo. 1983); People v. Clark, 662 P.2d 1100 (Colo. App. 1982); People v. Bridges, 662 P.2d 161 (Colo. 1983); People v. District Court, 663 P.2d 616 (Colo. 1983); People v. Brandt, 664 P.2d 712 (Colo. 1983); People v. Vigil, 718 P.2d 496 (Colo. 1986).

 
 
 
   
 
 II. ELEMENTS OF OFFENSE. 
 
 
   
 
 

Victim must show resistance or that resistance was overcome by fear. To constitute the crime of rape there must be the utmost reluctance and resistance on the part of the female complainant, or her will must be overcome by fear and terror so extreme as to preclude resistance. Bigcraft v. People, 30 Colo. 298, 70 P. 417 (1902).

 
 
 
   
 
 

This section recognizes the offense even though there is no actual resistance where the female person is prevented from resistance by threats of immediate and great bodily harm, accompanied by apparent power of execution. People v. Futamata, 140 Colo. 233, 343 P.2d 1058 (1959).

 
 
 
   
 
 

Acts and circumstances may obviate the necessity of proof of physical resistance, as where they show fear making it impossible, or conditions making it useless. Cortez v. People, 155 Colo. 317, 394 P.2d 346 (1964).

 
 
 
   
 
 

Proof of sexual intrusion is sufficient to support a conviction for first degree sexual assault. People v. Lankford, 819 P.2d 520 (Colo. App. 1991).

 
 
 
   
 
 

Sexual intercourse for the purposes of sexual assault does not include simulated intercourse. People v. Jurado, 30 P.3d 769 (Colo. App. 2001).

 
 
 
   
 
 

Where the jury is properly instructed as to the elements of the offense and the term "knowingly," the jury should properly focus on whether the defendant knowingly caused submission of the victim through the application of physical force or violence. The defendant's awareness of the victim's non-consent is neither an element of the offense nor a topic for argument to the jury. People v. Dunton, 881 P.2d 390 (Colo. App. 1994).

 
 
 
   
 
 

Nothing in the plain language of subsection (1)(b) suggests that the section is limited to cases involving victims who suffer from a mental infirmity. People v. Platt, 170 P.3d 802 (Colo. App. 2007).

 
 
 
   
 
 

The coexistence of subsections (1)(b) and (1)(h) represents a reasoned legislative determination that, depending on the facts of a particular case, a victim who is partially asleep and incapable of appraising the nature of his or her own conduct may not necessarily be physically "unable to indicate willingness to act." People v. Platt, 170 P.3d 802 (Colo. App. 2007).

 
 
 
   
 
 

Proof of defendant's awareness of nonconsent is not necessary under this section, except under the circumstances described in subsection (1)(e). In all other circumstances, the prohibited conduct by its very nature negates the existence of the victim's consent. Dunton v. People, 898 P.2d 571 (Colo. 1995).

 
 
 
   
 
 

And it is not error for trial court to refuse jury instruction on the affirmative defense of consent where the statute equates the victim's nonconsent with proof that defendant had caused the victim's submission by means "of sufficient consequence reasonably calculated to cause submission against the victim's will". In such case, the jury can only convict a defendant after concluding that the prosecution has proved the victim's lack of consent beyond a reasonable doubt. People v. Martinez, 36 P.3d 154 (Colo. App. 2001).

 
 
 
   
 
 

Submission induced by fear of great bodily harm does not constitute consent, especially where the threats are accompanied by a demonstration of actual force. Cortez v. People, 155 Colo. 317, 394 P.2d 346 (1964).

 
 
 
   
 
 

Principles of complicity apply to sexual assault in the first degree such that, if the actor or an accomplice is armed with and uses a deadly weapon, then both may be found to have committed a class 2 felony. People v. Walford, 716 P.2d 137 (Colo. App. 1985).

 
 
 
   
 
 

Sexual assault is not a lesser included offense of, and therefore not merged into, second-degree kidnapping involving sexual assault. People v. Henderson, 810 P.2d 1058 (Colo. 1991); People v. McKnight, 813 P.2d 331 (Colo. 1991); People v. Johnson, 815 P.2d 427 (Colo. 1991); People v. Martinez, 32 P.3d 520 (Colo. App. 2001).

 
 
 
   
 
 

For first degree assault to be elevated from a class 3 felony to a class 2 felony, there must be more than one person involved in the sexual assault. People v. Osborne, 973 P.2d 666 (Colo. App. 1998).

 
 
 
   
 
 

Evidence insufficient to support jury's determination that defendant physically aided or abetted in the commission of the sexual assault. People v. Osborne, 973 P.2d 666 (Colo. App. 1998).

 
 
 
   
 
 

The term "extreme pain" is one of ordinary and not technical usage. People v. Albo, 195 Colo. 102, 575 P.2d 427 (1978).

 
 
 
   
 
 

Extreme pain measure of criminal conduct. The term "extreme pain" as used in subsection (1)(b) of this section is a measure of criminal conduct and a gauge for determining whether the threat was the cause for the victim's submission; it is not so vague or overbroad as to render the section unconstitutional. People v. Albo, 195 Colo. 102, 575 P.2d 427 (1978).

 
 
 
   
 
 

Element of submission through actual application of physical force or physical violence is applied in People v. Cole, 926 P.2d 164 (Colo. App. 1996).

 
 
 
   
 
 

Term "attended" in subsection (3) is applied in People v. Cole, 926 P.2d 164 (Colo. App. 1996).

 
 
 
   
 
 

Threats of future retaliation not made until after the assault were insufficient to establish the class three felony aggravator under subsection (4)(c). People v. Baker, __ P.3d __ (Colo. App. 2007).

 
 
 
   
 
 III. TRIAL AND PROSECUTION. 
 
 
   
 
 A. In General. 
 
 
   
 
 

Where acts were continuous people may be compelled to rely on certain act. Where in a prosecution under this section of a male for having carnal knowledge of an unmarried female, it appearing that the illicit intercourse was continuous, the people may on motion be compelled to select the occasion upon which they will demand a conviction, and this selection must be made before the accused is required to proceed to his defense. The prosecutor is not required to select any specific date, but must individualize a certain act upon which he will rely. Laycock v. People, 66 Colo. 441, 182 P. 880 (1919).

 
 
 
   
 
 

Where there was evidence of several different acts committed at different times, it was error to refuse to require the prosecuting attorney to elect upon which offense he would rely for a conviction. Schuette v. People, 33 Colo. 325, 80 P. 890 (1905).

 
 
 
   
 
 

On the trial of a statutory rape case, election of the district attorney to rely upon a particular offense committed on or about a certain date, at the conclusion of the state's case and before the beginning of the case for the defense, held not to violate the rule in Laycock v. People (66 Colo. 441, 182 P. 880 (1919)). Wills v. People, 100 Colo. 127, 66 P.2d 329 (1937).

 
 
 
   
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