2018 COA 155
Colo. Ct. App.2018Background
- Defendant Travis Hodge, an adult, met a 14-year-old victim online and arranged to meet in Colorado under a false pretext.
- At a vacation rental, Hodge placed a padlocked collar, handcuffed the victim, and gagged him; the restraints remained on during multiple sexual acts (digital, dildo, and penile penetration) and fellatio.
- The victim initially discussed BDSM fantasies with Hodge and had agreed to some restraint use, but later wanted to stop, left after Hodge fell asleep, and contacted police.
- Prosecutors charged three counts of sexual assault on a child under § 18-3-405(1) and alleged a force aggravator under § 18-3-405(2)(a), which elevates the offense to a class 3 felony if the actor applies force to facilitate sexual contact.
- At the preliminary hearing the district court found probable cause for class 4 sexual assault but dismissed the force aggravators, reasoning the victim consented to the restraints so no force was shown.
- The People appealed the dismissal; the Court of Appeals reviewed statutory interpretation de novo and whether probable cause for the force aggravator existed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a child victim can legally consent to the use of force (force aggravator under § 18‑3‑405(2)(a)) | "Force" includes constraint or compulsion; restraints here are constraints and constitute force regardless of claimed consent | "Force" implies coercion/nonconsent; consensual use of restraints negates the force element | A child cannot legally consent to use of force; court erred by treating the victim’s agreement as negating the aggravator |
| Whether evidence at the preliminary hearing established probable cause for the force aggravator | Evidence of prearranged BDSM, application of restraints before sexual acts, and restraints remaining on during penetration supports an inference that force was used to facilitate sexual contact | Consent evidence undermines the force inference; thus insufficient probable cause for a class 3 charge | Viewing evidence in the light most favorable to the prosecution, probable cause supported the force aggravator and class 3 felony charges; remand to reinstate those counts |
Key Cases Cited
- People v. Keene, 226 P.3d 1140 (Colo. App. 2009) (defines physical force as force applied to the body and rejects requirement of an extra application of force)
- People ex rel. VanMeveren v. District Court, 575 P.2d 405 (Colo. 1978) (uses example of grabbing and holding as evidence of physical force)
- People v. Hall, 999 P.2d 207 (Colo. 2000) (instructs that preliminary-hearing evidence is viewed in the light most favorable to the prosecution and sets probable-cause standard)
- People v. Collins, 32 P.3d 636 (Colo. App. 2001) (explains limited purpose and standard for a preliminary hearing)
- Jensen v. People, 765 P.2d 1028 (Colo. 1988) (preliminary hearing is not a mini-trial; limited purpose)
- Bostelman v. People, 162 P.3d 686 (Colo. 2007) (statutory interpretation reviewed de novo)
- United States v. De La Cruz-Garcia, 590 F.3d 1157 (10th Cir. 2010) (construing similar Colorado statute to recognize that adult-minor sexual activity inherently takes unfair advantage of the victim)