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Sexual Conduct under Colorado Rape Shield Law

In Re: People v. Williamson, Case No. 10SA325 (Colo. April 11, 2011)

Soliciting / Prostitution
Rape Shield
Definition of “Sexual Conduct”

Facts: The prosecution charged Mr. Williamson with kidnapping and sexual assault. Mr. Williamson claimed the complaining witness works as a prostitute, and wanted to admit other instances of her prostitution to prove she is in fact a prostitute. Justice Rice, in the first paragraph, wrote, “[He] concedes that he never paid the victim.” Mr. Williamson moved to introduce five instances where the complaining witness solicited prostitution to undercover cop. None of the five instances that Mr. Williamson sought to admit involved actual intercourse or any kind of sexual contact.

Issue: Whether “sexual conduct” in the Rape Shield statute encompasses instances where no sexual contact or intercourse occurred?

Held: Yes.

Reasoning: In People v. Cobb, 962 P.2d 944, 951 (Colo. 1998), the defense sought to admit police contact cards on the complaining witness. In Cobb, the complaining witness told the police Mr. Cobb raped her when she ran out of gas and that she was unfamiliar with the area. However, the contact card showed she used the same excuse when the police contacted her in the same area with another man. Mr. Cobb sought introduction of the evidence to impeach the complaining witness for claiming she was not familiar with the area. The Court drew a difference between the scenario in Cobb and here. The Court stated Rape Shield did not encompass inferences of sexual conduct, as was the situation in Cobb. Here the defense did not make mere inferences of prostitution, but sought prior instances of soliciting prostitution. Thus, the Court held that even where no actual sexual contact or intercourse takes place, sexual conduct is broad enough to include prior acts of simply soliciting prostitution.

***Commentary provided by Eric Sims Jr., Esq. (used with permission)***


In this opinion, we hold that evidence of past acts of solicitation of prostitution, even when no sexual contact or intercourse occurred, is “sexual conduct” and thus protected under Colorado’s Rape Shield Statute, section 18-3-407, C.R.S. (2010). We therefore make this rule absolute and remand for a hearing pursuant to section 18-3-407(2)(c).

Conclusion (by Court)
We hold that solicitation of prostitution from an undercover police officer is “sexual conduct” protected by section 18-3-407. Therefore, the court should have conducted a hearing pursuant to section 18-3-407(2) to determine if the evidence was admissible. Further, because we hold that evidence of solicitation of prostitution is “sexual conduct” protected under the Rape Shield Statute, it was unnecessary for the trial court to perform a separate 404(b) analysis. Accordingly, we make this rule absolute and remand to the trial court to conduct a hearing and make findings pursuant to section 18-3-407(2).

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