Chapter 27 - § 27.4 • SUBSTANTIVE CRIMES OCCURRING IN FAMILY RELATIONSHIPS

• Jurisdiction: Colorado

§ 27.4 • SUBSTANTIVE CRIMES OCCURRING IN FAMILY RELATIONSHIPS

§ 27.4.1—Classification of Crimes

Article 6 of Colorado's Criminal Code (C.R.S. Title 18) contains the offenses involving family relations. If the client is charged with a misdemeanor, the charging document will usually be a ticket with a return date specified thereon. If the client is charged with a felony, the charging document will usually be an information/complaint. Grand juries are rarely used for offenses involving family relations. The Colorado Criminal Code governs state crimes and categorizes crimes into three levels: felonies, misdemeanors, and petty offenses. Most Colorado municipalities have their own criminal codes for municipal violations. Often charged in domestic violence situations are municipal ordinances regarding disturbing the peace and assault. Each municipal code sets forth the possible penalties for criminal conduct, including potential for jail time, probation, and/or a fine. Municipal criminal procedure is different from county court procedure and presents another reason why a criminal lawyer should be consulted immediately.

Criminal offenses most relevant to family generally fall into five categories: domestic violence-related crimes, child abuse, sex crimes, alcohol and drug-related offenses, and offenses committed by children.

§ 27.4.2—Domestic Violence

Contrary to public misconception, domestic violence is not a substantive crime but rather a sentence enhancer for "an act or threatened act of violence upon a person with whom the actor is or has been involved in an intimate relationship." C.R.S. § 18-6-800.3(1). The substantive crime charged is often an assault, a sexual assault, or harassment. 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. C.R.S. § 18-6-800.3. These definitions are similar to the definitions of domestic violence in the Uniform Dissolution of Marriage Act. C.R.S. § 14-10-124(1.3)(a). Most district attorneys' offices include family relationships of all kinds within domestic violence. Many district attorneys' offices have prosecutors designated to prosecute only domestic violence crimes.

Practice Pointer
An historical perspective of domestic violence is useful in assessing how the prosecution and judge will react to an individual charged with a domestic violence crime. For many years, crimes that occurred within the home, particularly between husband and wife, were not brought to the attention of the prosecution by local law enforcement. Even when the crime was brought to the attention of the prosecution by local law enforcement, it was not perceived as a high priority prosecution and was left to the individuals involved to resolve within the family. That has changed dramatically. Crimes involving domestic violence are now pursued aggressively — often times more aggressively than if the same crime had occurred between strangers. There is a presumption in most prosecution offices that domestic violence crimes are often part of a larger pattern and are particularly susceptible to repetition. Therefore, prosecutors tend to be especially tenacious in their prosecution of domestic violence crimes. This perspective leads most prosecutors' offices to pursue the prosecution of domestic violence crimes even in the face of an alleged victim who is claiming that the initial report was false and/or exaggerated. Many times the alleged victim, especially if he or she is classically battered, does not want the alleged perpetrator prosecuted after the alleged criminal activity has stopped. The recanting or retracting victim, in the context of a domestic violence prosecution, is not unusual. Therefore, most prosecutors are extremely skeptical of a recantation. Indeed, the retraction or recantation can be cause for a prosecutor to be more aggressive in pursuit of the case, because the cycle of accusation and recantation is thought to be particularly prominent in the area of domestic violence.

Contrary to public perception, complainants do not press charges against accused persons; the police and prosecutors make the determination. In most jurisdictions, police operate according to directives and policies, if not statutes, designed to recognize the dangerous reality facing victims of domestic abuse and to ensure that family violence is treated as a criminal matter rather than a private family matter. In general, these policies require the police to make an arrest, remove the perpetrator from the home, and bring charges whenever there is probable cause to believe an offense has been committed.

Sometimes, of course, allegations of family violence are made in the heat of the moment during intense conflict and are made more out of frustration than fear. Financial stressors, alcohol use, mental health issues, or a sense of betrayal may contribute to a spouse's poor judgment and behavior and lead to criminal charges. In some of these situations, the family is not seeking a permanent separation, but looking for help. When police are called to a home in response to an argument between spouses, it is unlikely that either party will have received legal advice before the complaint is made and a party is arrested. Some spouses call the police because they need assistance in the moment, but have no intention of having their partner charged with a criminal offense. They have no knowledge that once the police are called, they lose control over what happens. If the complainant does not want to proceed, he or she should retain a lawyer to advocate with the prosecutor and court. Among other things, the complainant's counsel can negotiate with the prosecutor's office in order to minimize the impact of the criminal prosecution on the family unit.

If the victim complainant does want the criminal case to proceed, the provisions of C.R.S. § 24-4.1-302.5 afford crime victims the right to be treated with fairness and to be free from intimidation, harassment, or abuse through the criminal justice system. A victim has the right to be informed of, and present for, all critical stages of the criminal justice proceedings and the right to be heard at any court hearing involving the defendant's bond, plea bargain, sentence, or modification of the no-contact provision of the mandatory protection order. Most district attorneys' offices will assign a victim advocate to assist the complainant throughout the case and to provide information required by the statute. The statute provides that a victim shall be advised of his or her right to seek restitution in the criminal case and to pursue a civil judgment for damages caused by the defendant's actions. Additional rights include...