Summary
The Colorado Supreme Court affirmed Bruce Platt's sexual-assault conviction under section 18-3-402(1)(b), holding that sexual conduct involving a sleeping or partially sleeping victim may fall under either subsection (b) or subsection (h). The court held that the prosecution may choose between overlapping statutory provisions when the evidence supports both, and that proof under subsection (b) necessarily negates consent, so Platt was not entitled to present consent as a defense or receive a consent jury instruction. Justice Hobbs dissented, arguing that subsection (h) specifically governs assaults involving sleeping victims and preserves the issue of consent.
Topics
Practice areas
Questions Presented
- Whether a sexual assault involving a sleeping or partially sleeping victim may be charged under section 18-3-402(1)(b), or must be charged under subsection (h), which specifically addresses physically helpless victims.
- Whether the evidence was sufficient to support Platt's conviction under subsection (b).
- Whether proof of incapacity under subsection (b) necessarily negates consent and therefore permits the defendant to present evidence of consent but does not entitle him to a separate consent defense or jury instruction.
Holdings
- Depending on the evidence, sexual-assault conduct involving a sleeping victim may reasonably fall under either subsection (b), concerning a victim incapable of appraising the nature of her conduct, or subsection (h), concerning a physically helpless victim. The subsections are not mutually exclusive, and when conduct reasonably falls within two criminal statutes, the prosecution may select the statute under which to proceed.
- The evidence that the victim was partially asleep was sufficient to support Platt's conviction under subsection (b), because a sleeping victim may be incapable of appraising the nature of her conduct.
- Because proof that the victim was incapable of appraising the nature of her conduct necessarily negates consent under subsection (b), Platt was not entitled to present consent as a separate defense or to receive a consent jury instruction. He could, however, introduce evidence that the victim was capable of appraising the nature of her conduct to contest an element of the offense.
Key quotations
“When a defendant's conduct reasonably falls within two statutes, the prosecution has discretion to select under which statute to proceed; the question then becomes whether there is sufficient evidence to support the conviction.” (547-48)
“While a defendant may introduce evidence that the victim was in fact capable of appraising the nature of her conduct, as Platt did in this case, he is not permitted to present a defense of consent per se, nor is he entitled to a jury instruction concerning consent.” (550)
Factual background
Platt lived in a house shared by the victim and her boyfriend. While the victim was partially asleep on a couch, Platt fondled her genital area and digitally penetrated her vagina; she initially believed the person touching her was her boyfriend, but recognized Platt when she opened her eyes, kicked him away, and swore at him. Platt admitted to police that he knew the victim was asleep and that she had not given him any indication that touching her was acceptable.
Procedural history
Platt was convicted by a jury of sexual assault under section 18-3-402(1)(b), C.R.S. (2008), and sentenced to six years' imprisonment. The trial court denied his motions for acquittal and refused to instruct the jury on consent. The Colorado Court of Appeals affirmed, and the Colorado Supreme Court granted certiorari to decide whether a sleeping victim may be incapable of appraising the nature of her conduct under subsection (b).