Decriminalization Of Simple Assault, Adultery And Promoting Sexual Immorality In Colorado

There are a some common law criminal offenses which have been decriminalized in Colorado.

Adultery

Until recently, adultery was a crime, even though there was no punishment that could be imposed for violating it. Before its repeal is read: 

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

But, that crime has now been repealed by House Bill 2013-1166. This removed the ambiguity associated with having a crime that has no punishment, which was an outlier in the criminal code.

The language that was repealed, which effectively stated that adultery was decriminalized in Colorado, was probably adopted in 1971 in Senate Bill 1971-263, § 1. The adultery statute was previously codified at C.R.S.1963, §§ 40-6-501, 40-9-3, but it is a bit hard to tell if those versions had a criminal penalty attached.

It is actually a crime to bring a tort claim in Colorado based upon adultery (which is a "heart balm" tort). And, adultery per se cannot be considered in divorce or child custody cases either. This criminal statute, sponsored by my state house representative (Daniel Kagan), which I agree with, was repealed effective August 7, 2013, by Public Law 2013, Chapter 59, § 1 (House Bill 2013-1166).

House Bill 2013-1166 also repealed the much more dubious and problematic crime of "promoting sexual immorality" which had been a class 2 misdemeanor. It had previous criminalize providing hotel rooms or apartments to unmarried people who will have sex there. It stated:

(1) Any person who, for pecuniary gain, furnishes or makes available to another person any facility, knowing that the same is to be used for or in aid of sexual intercourse between persons who are not husband and wife, or for or in aid of deviate sexual intercourse, or who advertises in any manner that he furnishes or is willing to furnish or make available any such facility for such purposes, commits promoting sexual immorality. 

(2) "Facility", as used in this section, means any place or thing which provides seclusion, privacy, opportunity, protection, comfort, or assistance to or for a person or persons engaging or intending to engage in sexual intercourse or deviate sexual intercourse.

Simple Assault

Also, Colorado back in 1994 removed from the definition of assault, what used to be the core offense of simple assault, i.e. causing bodily injury (other than serious bodily injury) with an intent to cause bodily injury (other than serious bodily injury) to someone other than a first responder, without a deadly weapon.

It isn't entirely clear what the motive for this was other than to decriminalize minor, common conduct, which was done effective July 1, 1994 through House Bill 94-1126. I don't have legislative history easily available that goes back that far.

To the extent that the conduct constitutes fighting in a public place outside of an athletic competition, this can constitute "disorderly conduct". And, to the intent intended to annoy, harass or alarm, it can constitute "harassment" or perhaps "hazing". There are also some specialized circumstances where it is still a crime (based upon relationships or location). But, the general crime has been reduced and is now merely a tort or municipal ordinance violation.

Disorderly conduct (a class 2 misdemeanor) still includes the following:

1) A person commits disorderly conduct if he or she intentionally, knowingly, or recklessly:

(a) Makes a coarse and obviously offensive utterance, gesture, or display in a public place and the utterance, gesture, or display tends to incite an immediate breach of the peace ...

(c) Makes unreasonable noise in a public place or near a private residence that he has no right to occupy; or 

(d) Fights with another in a public place except in an amateur or professional contest of athletic skill; or 

(e) Not being a peace officer, discharges a firearm in a public place except when engaged in lawful target practice or hunting or the ritual discharge of blank ammunition cartridges as an attendee at a funeral for a deceased person who was a veteran of the armed forces of the United States; or 

(f) Not being a peace officer, displays a deadly weapon, displays any 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 he or she is armed with a deadly weapon in a public place in a manner calculated to alarm.

Colo. Rev. Stat. Ann. § 18-9-106.

This statute, together with the menacing statute (which is basically what used to be called "assault" as opposed to "battery" at common law), however, does criminalize a lot of conduct related to guns and other deadly weapons that doesn't directly cause bodily harm. The menacing statutes states:

(1) A person commits the crime of menacing if, by any threat or physical action, he or she knowingly places or attempts to place another person in fear of imminent serious bodily injury. Menacing is a class 3 misdemeanor, but, it is a class 5 felony if committed: 

(a) By the use of a deadly weapon or any article used or fashioned in a manner to cause a person to reasonably believe that the article is a deadly weapon; or 

(b) By the person representing verbally or otherwise that he or she is armed with a deadly weapon.

Colo. Rev. Stat. Ann. § 18-3-206.

Harassment, which is a class 3 misdemeanor in cases that are not hate crimes, is:

(1) A person commits harassment if, with intent to harass, annoy, or alarm another person, he or she: 

(a) Strikes, shoves, kicks, or otherwise touches a person or subjects him to physical contact; or . . . 

(c) Follows a person in or about a public place; or . . . 

(2) Harassment pursuant to subsection (1) of this section is a class 3 misdemeanor; except that harassment is a class 1 misdemeanor if the offender commits harassment pursuant to subsection (1) of this section with the intent to intimidate or harass another person because of that person's actual or perceived race; color; religion; ancestry; national origin; physical or mental disability, as defined in section 18-9-121(5)(a); or sexual orientation, as defined in section 18-9-121(5)(b). . .  

(8) This section is not intended to infringe upon any right guaranteed to any person by the first amendment to the United States constitution or to prevent the expression of any religious, political, or philosophical views.

Colo. Rev. Stat. Ann. § 18-9-111.

For purposes of the harassment statute, physical contact includes spitting on someone. People v. Peay, 5 P.3d 398 (Colo. App 2000).

Hazing, which is a class 3 misdemeanor is defined as follows:

(2) As used in this section, unless the context otherwise requires: 

(a) “Hazing” means any activity by which a person recklessly endangers the health or safety of or causes a risk of bodily injury to an individual for purposes of initiation or admission into or affiliation with any student organization; except that “hazing” does not include customary athletic events or other similar contests or competitions, or authorized training activities conducted by members of the armed forces of the state of Colorado or the United States. 

(b) “Hazing” includes but is not limited to: 

(I) Forced and prolonged physical activity; 

(II) Forced consumption of any food, beverage, medication or controlled substance, whether or not prescribed, in excess of the usual amounts for human consumption or forced consumption of any substance not generally intended for human consumption; 

(III) Prolonged deprivation of sleep, food, or drink. 

(3) It shall be unlawful for any person to engage in hazing. 

(4) Any person who violates subsection (3) of this section commits a class 3 misdemeanor.

Colo. Rev. Stat. Ann. § 18-9-124.

So, for example, punishing someone in the face, in private, when it doesn't involve a child, an "at risk" adult, a pledge, or a domestic partner, is not a crime unless there is an intent to "annoy", "harass" or "alarm" which seems unnecessarily narrow in terms of plausible intents that should be criminal to me. 

For example, punching someone in the face, in private, with an intent to obtain retribution for a perceived slight, wouldn't seem to be covered by this statute.

Commentary

Personally, I think it would make more sense to decriminalize the non-violent offense of pure petty larceny, than to decriminalize than to decriminalize intentionally causing bodily injury with an intent to do so. But, Colorado's general assembly, in its wisdom, has disagreed.