Hotsenpiller v. Morris
2017 COA 95
| Colo. Ct. App. | 2017Background
- J.C. obtained a permanent civil protection order (CPO) against Hartsuff under § 13-14-106; the CPO stated "no contact of any kind" and warned only the court could change it.
- Police responded after J.C. reported Hartsuff on her porch and showed texts/calls; Hartsuff was arrested and charged with harassment and violation of a protection order (§ 18-6-803.5).
- At pretrial Hartsuff endorsed the affirmative defense of consent under Colorado’s consent statute (§ 18-1-505); defense claimed J.C. assented to contact, which would preclude the harm the statute seeks to prevent.
- The county court ruled consent was available because alleged assent precluded the harm (contact) the protection-order statute sought to prevent; the district court affirmed on C.R.C.P. 106(a)(4) review.
- The Court of Appeals reversed: it held a protected person’s alleged assent cannot supply an affirmative consent defense to a CPO violation because CPOs are court orders, modification requires court approval, and the statutory harm is societal (preventing domestic violence and preserving court orders), not merely private consentible contact.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether consent (§ 18-1-505) is an available affirmative defense to a charge of violating a civil protection order (§ 18-6-803.5) | Consent is available because the harm the violation statute prevents is unwanted contact; if the protected person assented, that precludes the harm. | Consent is not available because a CPO is an order of the court, only the court can modify it, and the statutory harms include societal objectives (preventing domestic abuse and protecting the integrity of court orders). | Reversed: consent is not an available affirmative defense to a CPO violation; alleged assent can be relevant to mens rea or as a traverse but not as an affirmative consent defense. |
Key Cases Cited
- Maness v. Meyers, 419 U.S. 449 (U.S. 1975) (court orders must be obeyed until changed by proper proceedings)
- United Mine Workers v. Gibbs, 330 U.S. 258 (U.S. 1947) (orders of a court must be obeyed until reversed by proper proceedings)
- Dunton v. People, 898 P.2d 571 (Colo. 1995) (statutory elements may negate availability of consent defense)
- Dixon v. State, 869 N.E.2d 516 (Ind. Ct. App. 2007) (protected person’s assent does not negate elements or preclude the violence the statute seeks to prevent)
- State v. Kidder, 843 A.2d 312 (N.H. 2004) (protective orders are orders of the court; parties lack authority to approve exceptions)
- In re Shirley, 28 A.3d 506 (D.C. 2011) (consent by protected person cannot modify a protective order to excuse contact)
- State v. Cardus, 949 P.2d 1047 (Haw. Ct. App. 1997) (statute sought to prevent exploitive consent; inmate cannot consent to guard sexual conduct)
- State v. Branson, 167 P.3d 370 (Kan. Ct. App. 2007) (domestic-violence purpose of protective-order statutes precludes consent defense)
- People v. Coleby, 34 P.3d 422 (Colo. 2001) (mens rea element "knowingly" applies to conduct in protection-order violation)