479 P.3d 910
Colo.2021Background
- In 2015 Phillip L. Ross responded to online ads for paid sex placed by two persons, C.W. and M.O., who represented themselves as adults; M.O. expressly told Ross she was twenty.
- Ross exchanged sexually explicit texts and negotiated payment; he admitted texting and agreeing to pay but denied intending to solicit child prostitution.
- The People charged Ross with four counts of soliciting for child prostitution under Colo. Rev. Stat. § 18-7-402(1)(a) and (b) (one (a) and one (b) count per girl).
- At trial Ross moved for judgment of acquittal arguing the People produced no evidence his purpose was child prostitution; the People invoked § 18-7-407 to bar mistake-of-age defenses and urged that age need not be part of the mens rea.
- The trial court acquitted the two counts involving M.O. for lack of evidence that Ross's purpose was child prostitution; the court denied acquittal on the C.W. counts (relying on a photo). The People appealed; the court of appeals affirmed, equating "for the purpose of" with intent. The Colorado Supreme Court granted review.
- The Supreme Court affirmed the court of appeals' result but on different grounds: it held the required culpable mental state (whether intent or knowingly) applies to every part of each element, including that the defendant's purpose was prostitution of or by a child, and § 18-7-407 does not relieve the People of proving that purpose.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Ross) | Held |
|---|---|---|---|
| Whether the phrase "for the purpose of" in § 18-7-402(1)(a)–(b) describes a culpable mental state (mens rea) | The phrase does not itself supply mens rea but qualifies the prohibited conduct; where no mens rea is specified, impute the culpable state "knowingly" under § 18-1-503 | The phrase denotes intent; the statute requires proof the defendant intended child prostitution | Court did not definitively resolve whether the phrase equals "intent," but held that, whichever culpable state (intent or knowingly) applies, it applies to all elements including the "purpose" element |
| Whether the victim's age or the defendant's knowledge/belief about age is a strict-liability element | Victim's age is effectively strict liability; it suffices to prove the defendant's purpose was prostitution and that the person turned out to be a child; § 18-7-407 bars mistake-of-age defenses | The People must prove the defendant's purpose was child prostitution; knowledge/belief about age are relevant to proving that purpose, not subject to strict liability | Court rejected the People’s strict-liability view: no part of the purpose element is governed by strict liability; the People must prove the defendant intended prostitution of or by a child |
| Effect of § 18-7-407 (prohibiting mistake-of-age defense) on the People’s burden of proof | § 18-7-407 prevents defendants from asserting lack-of-knowledge or reasonable-belief defenses as to age, which the People say supports a reduced burden | Ross: § 18-7-407 does not relieve the People of proving purpose; it only limits defensive arguments | Court held § 18-7-407 does not alter the People’s burden to prove the purpose element; it only limits available defenses; the trial court correctly dismissed counts as to M.O. for insufficient evidence of child-purpose |
Key Cases Cited
- People v. Ross, 482 P.3d 452 (Colo. App. 2019) (division concluded "for the purpose of" equates to intent and affirmed dismissal as to one alleged victim)
- People v. San Emerterio, 839 P.2d 1161 (Colo. 1992) (distinguishes completed offense by solicitation separate from ultimate sexual act)
- People v. Emerterio, 819 P.2d 516 (Colo. App. 1991) (discusses focus of soliciting statutes on solicitation/arrangement rather than the ultimate act)
- People v. Mason, 642 P.2d 8 (Colo. 1982) (soliciting for prostitution is complete when solicitation or arrangement occurs)
- Thompson v. People, 471 P.3d 1045 (Colo. 2020) (statutory interpretation principles; review of questions of law de novo)
- Mook v. Bd. of Cnty. Comm'rs, 457 P.3d 568 (Colo. 2020) (canon requiring harmonious construction of statutes to give effect to all parts)