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Legislators work to close sexual assault law loophole

February 14, 2019

DENVER (AP) — When Senon Louis Ramirez’s conviction for sexually assaulting one of his foster children was overturned last year because of a loophole in Colorado law, there was outrage over how such a gap could exist.

But the alarming case and its graphic details really just publicly illuminated a problem prosecutors have been aware of for years and that has surfaced before in other similar, grotesque crimes, The Colorado Sun reports .

“Certainly it was on our radar,” said Amanda Gall, the sexual assault resource prosecutor for the Colorado District Attorneys’ Council. “But once the Ramirez case came out it tipped the scale in terms of timing.”

The loophole is in the legal definition of sexual contact. In Colorado, the law is written to define when a crime is committed based off of touching a person’s “intimate parts.” But that doesn’t include ejaculating on a victim, the court has ruled, which is what Ramirez is accused of doing.

Other suspects have avoided felony charges because of that flaw in the state statute, Gall said.

On Tuesday, a bill seeking to close the gap got its first hearing at the Capitol and was referred to the full House for consideration. It would add ejaculating on a victim or their clothing to Colorado’s sexual misconduct laws. House Bill 1155 has bipartisan support and is one of the top priorities for CDAC, which represents prosecutors from the state’s 22 judicial districts.

“Should a situation like this arise again we don’t want the courts to have any doubt that we consider this sort of a violation a sexual contact violation,” said state Rep. Dafna Michaelson Jenet, a Commerce City Democrat who is the legislation’s prime sponsor. “We want to make sure that this doesn’t happen again.”

Ramirez was convicted in 2016 of ordering his then-foster child to let him ejaculate into her hands and then, according to court records, “drink the semen.” The child was 4. An Adams County jury found him guilty of one count each of sexual assault of a child and sexual assault of a child by a person by a position of trust. He was sentenced to 20 years to life in prison plus one year in jail.

But a three-judge panel from the Colorado Court of Appeals ruled 2-1 in September that Ramirez had not violated the state’s child sexual assault laws because he hadn’t “touched an intimate part of the victim.”

One of the two victims in the case testified at trial that she never touched Ramirez’s genitals and that he never touched hers during the incident, according to court records.

“Because we must construe the statutory language according to its plain and ordinary meaning, we conclude that semen is not an ‘intimate part,’” said the ruling written by Judge Michael Berger.

Then-Colorado Attorney General Cynthia Coffman, a Republican, urged state lawmakers to swiftly act in response to the ruling, as did Adams County District Attorney Dave Young, a Democrat whose office oversaw Ramirez’s case. Even the appellate court judges who overturned the conviction hinted that they wanted something done.

“The court pretty strongly suggested that the legislature take up this issue,” Gall said, “so I’m glad that they are willing to do it.”

Among the most prominent cases where the issue had surfaced before, Gall said, occurred in 2013 when a University of Colorado Boulder student was accused of breaking into a dorm room and ejaculating on a sleeping student. Because of the loophole, he couldn’t be charged with a sex offense and instead faced burglary accusations because he also stole his victim’s underwear, Boulder County prosecutors said.

Prosecutors in Denver also have had at least one case where a suspect ejaculated on a fellow passenger while they were taking public transportation, Gall said, but because of the loophole couldn’t be charged with a sexual-contact crime.

The Colorado Coalition against Sexual Assault has been working with state lawmakers to close the gap in the law, resulting in the bill that was heard Tuesday. State budget writers anticipate the change would likely impact less than five cases each year.

However, the small number of cases with changed outcomes isn’t the point, Michaelson Jenet says.

“Whether it’s five cases or two cases or 200 cases, nobody should get away with that,” she told The Colorado Sun.

The Adams County District Attorney’s Office says even if the bill this year passes, it cannot retry a case like Ramirez’s since the measure is slated only to apply to crimes committed after it becomes law.

“Clearly when you ejaculate on a child that is a sexual assault and the punishment should fit the crime,” said Young, the Adams County district attorney.

He added: “I don’t think anyone in the state of Colorado would expect this particular factual situation not to be a sexual assault.”

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Information from: The Colorado Sun, http://coloradosun.com