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Colorado Criminal Law – Possible Defenses In Colorado Domestic Violence Cases

By H. Michael Steinberg Colorado Domestic Violence Criminal Defense Lawyer – Attorney

Colorado Criminal Law – Possible Defenses In Colorado Domestic Violence Cases – Affirmative defenses are a critical part of defending against Colorado domestic violence cases.

This article explores the most common defenses utilized to defend against such Colorado Domestic Violence Crimes such as assault, harassment, and false imprisonment.

While I have written on this subject before, this article closely examines, not only the most common defenses, but less common defenses that may apply in your case.

Self Defense – A Colorado Affirmative Defense To Domestic Violence Cases

While self defense is the most asserted affirmative defense against domestic violence charges in Colorado, it is only one defense. A creative Colorado criminal defense lawyer can sometimes, through a close analysis of the facts, assert other defenses.

The Colorado Affirmative Defense Of Self Defense is defined in the following law:

§ 18-1-704. Use of Physical Force In Defense of a Person

(1) Except as provided in subsections (2) and (3) of this section, a person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for that purpose.

(2) Deadly physical force may be used only if a person reasonably believes a lesser degree of force is inadequate and:

(a) The actor has reasonable ground to believe, and does believe, that he or another person is in imminent danger of being killed or of receiving great bodily injury; or

(b) The other person is using or reasonably appears about to use physical force against an occupant of a dwelling or business establishment while committing or attempting to commit burglary as defined in sections 18-4-202 to 18-4-204 ; or

(c) The other person is committing or reasonably appears about to commit kidnapping as defined in section 18-3-301 or 18-3-302, robbery as defined in section 18-4-301 or 18-4-302, sexual assault as set forth in section 18-3-402, or in section 18-3-403 as it existed prior to July 1, 2000, or assault as defined in sections 18-3-202 and 18-3-203.

(3) Notwithstanding the provisions of subsection (1) of this section, a person is not justified in using physical force if:

(a) With intent to cause bodily injury or death to another person, he provokes the use of unlawful physical force by that other person; or

(b) He is the initial aggressor; except that his use of physical force upon another person under the circumstances is justifiable if he withdraws from the encounter and effectively communicates to the other person his intent to do so, but the latter nevertheless continues or threatens the use of unlawful physical force; or

(c) The physical force involved is the product of a combat by agreement not specifically authorized by law.

(4) In a case in which the defendant is not entitled to a jury instruction regarding self-defense as an affirmative defense, the court shall allow the defendant to present evidence, when relevant, that he or she was acting in self-defense. If the defendant presents evidence of self-defense, the court shall instruct the jury with a self-defense law instruction. The court shall instruct the jury that it may consider the evidence of self-defense in determining whether the defendant acted recklessly, with extreme indifference, or in a criminally negligent manner. However, the self-defense law instruction shall not be an affirmative defense instruction and the prosecuting attorney shall not have the burden of disproving self-defense. This section shall not apply to strict liability crimes.

To read more about the Colorado laws of self defense – follow this link:

The Colorado Defense Of Alibi

While alibi is not a true “affirmative defense,” it raises a very real difficulty for the District Attorney if a credible alibi defense is injected into a Colorado domestic violence case. Essentially the defense of alibi means that a Defendant is alleging that he or she could not have committed a crime because – at the time the crime was committed – they were in a different location. This defense is also known as an “elemental traverse” defense.

Here is the difference between an “affirmative defense” and an “elemental traverse” defense.

If the evidence at trial raises the affirmative defense of self-defense, that affirmative defense effectively becomes an additional element to the crime charge, and the prosecution bears the burden of proving beyond a reasonable doubt that the affirmative defense does not apply.

On the other hand, if the evidence at trial raises the issue of an elemental traverse defense such as alibi, the jury may consider the evidence presented at trial in determining whether the prosecution has proven the element implicated by the traverse beyond a reasonable doubt. BUT in the case of an elemental traverse defense, a Defendant is not entitled to the much stronger protections of an affirmative defense.

The Colorado defense of alibi cannot be asserted without following certain procedural rules

– which rules require that a Defendant asserting the defense – provide notice to the prosecutor that the defense is being raised and provide very specific information to the prosecution about the alibi itself.

Here is the Colorado Alibi Notice Law – 16-7-102

§ 16-7-102. Required Notice of Defense of Alibi

If the defendant intends to introduce evidence that the defendant was at a place other than the location of the offense, the defendant shall serve upon the prosecuting attorney as soon as practicable, but not later than thirty-five days before trial, a statement in writing specifying the place where the defendant claims to have been and the names and addresses of the witnesses the defendant will call to support the defense of alibi.

Upon receiving the defendant’s statement, the prosecuting attorney shall advise the defendant of the names and addresses of any additional witnesses who may be called to refute such alibi as soon as practicable after the names of such witnesses become known.

Neither the prosecuting attorney nor the defendant shall be permitted at the trial to introduce evidence inconsistent with the specification statement unless the court for good cause and upon just terms permits the specification statement to be amended. If the defendant fails to make the specification required by this section, the court shall exclude evidence offered in support of the defense of alibi unless the court finds upon good cause shown that such evidence should be admitted in the interest of justice.

The Defense Of Property

There are fact patterns where the person accused of domestic violence has the right to use non-deadly force to defend against the threatened loss, damage or other encroachment to their personal property. The defense of property includes the defense of real property such as a home. This is the kind of “self-help” that is sometimes necessary to evict trespassers – even if those trespassers were at one time former lovers.

Where a Defendant is the rightful owner of property and the alleged domestic violence victim is trespassing on that property and has been ordered to leave the property- the defense of property statute applies.

BUT if both parties to a domestic violence altercation are on a lease or mortgage and are therefore in “privity of estate,” both have a present possessory interest to be “on the land,” and therefore formal court based procedures (eviction) must be used to eject an unwanted party and the kind of self-help that may occur where you are defending your home – e.g. defending your property against a trespasser, does not apply.

Remember, these are only possible defenses to accusations of domestic violence.

It becomes a little confusing where one party permits another party to live with them. This situation may lead to the creation of a “leasehold interest” in the person living in your home. A leasehold interest can create a sublease between the lessee (you) and the sub-lessee (your girl or boyfriend) with terms known commonly referred to as a “tenancy at will.”

The police will look for evidence of the alleged victim’s right to live in the home. These include the payment of rent, the sharing utility expenses or the sharing household expenses. When these things are present, the person claiming to have live in your home can no longer be – “trespassed off” as they have a possessory interest in the home.

Of course the defense of property does not just include trespassing in your home. It can include any attempt to steal, damage, or otherwise tamper with your personal affects.

What follows is Colorado Law as regards the use of physical force to defend personal property.

§ 18-1-706. Use of Physical Force in Defense of Property

A person is justified in using reasonable and appropriate physical force upon another person when and to the extent that he reasonably believes it necessary to prevent what he reasonably believes to be an attempt by the other person to commit theft, criminal mischief, or criminal tampering involving property, but he may use deadly physical force under these circumstances only in defense of himself or another as described in section 18-1-704.

The Defense of Necessity

The Colorado Defense of Necessity essentially turns on the common sense notion that the law will not hold someone responsible where that person had no choice but to act in an emergency not of his or her creation.

Colorado laws which create defenses to charges of various kinds of domestic violence – are basically summarized as “justification defenses” and “excuse defenses.”

An example of a “justification defense” would be self-defense. These defenses rely on the concept that a Defendant is allowed to take a “morally superior action” in a given situation.

On the other hand, “excuse defenses” include defenses such as insanity, necessity or choice of evils. Here the concept at law is Defendant may have been wrong but they should not be held morally culpable.

Therefore, when the accused asserts a “choice of evils” defense he is attempting to justify his actions based up on the argument that he was forced to choose the “lesser evil” and therefore made the morally superior decision.

As regards the Colorado defense of necessity, a Defendant must show, first – that he was not responsible for bringing about the emergency, and second – that his actions are justified because, under the factual circumstances at the time, no reasonable legal alternative was available.

The Defense Of Accidental Conduct

This defense is really an attack on the State’s duty to prove the mental state of the accused in a Colorado domestic violence charge. Here, the Defendant asserts that his actions were purely unintentional…that they occurred during a course of otherwise lawful conduct, and therefore the accused cannot be held responsible.

Essentially, the defense of “accident” is really is an attack on the required evidence that the Defendant was aware of his actions during the alleged commission of the crime charged.

The Defense Of Consent

There are many examples of the consent defense to a charge of domestic violence. What follows is the Colorado jury instruction on the defense – which may be the best method to explain the defense.

The Colorado Jury Instruction On The Defense Of Consent

The evidence presented in this case has raised the affirmative defense of “consent,” as a defense to [example – third degree assault].

The defendant’s conduct was legally authorized if:

1. the alleged victim consented to the conduct charged to constitute the offense, [or to the result thereof,] and

2. [the consent negates an element of the offense.]

[the consent precluded the infliction of [insert a short statement identifying the harm or evil sought to be prevented by the law defining the offense].]

“Consent” means cooperation in act or attitude pursuant to an exercise of free will and with knowledge of the nature of the act. A current or previous relationship is not sufficient to constitute consent. Submission under the influence of fear does not constitute consent.

An example of a consent defense to an accusation of assault may be a couples preference for what can only be described as “rough sex.” Proof of the consent of an alleged victim to rough sex would preclude a charge of assault if the alleged victim consented to the nature of the couple’s interaction during sex. So the existence of bruising or bite marks observed by the police can be defended on the basis of consensual sex acts.

Colorado Criminal Law – Possible Defenses In Colorado Domestic Violence Cases

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The reader is admonished that Colorado criminal law, like criminal law in every state and at the Federal level, changes constantly. The article appearing above was accurate at the time it was drafted but it cannot account for changes occurring after it was uploaded.

If, after reading this article, you have questions about your case and would like to consider retaining our law firm, we invite you to contact us at the Steinberg Colorado Criminal Defense Law Firm – 303-627-7777.

Never stop fighting – never stop believing in yourself and your right to due process of law. You will not be alone in court, H. Michael will be at your side every step of the way – advocating for justice and the best possible result in your case. H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case

ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at:

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You should be careful to make a responsible choice in selecting a Colorado Criminal Defense Lawyer. We encourage you to “vet” our firm. Over the last 40 plus years – by focusing ONLY on Colorado criminal law – H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, to include Colorado criminal law and procedure and trial and courtroom practice.

Putting more than 40 years of Colorado criminal defense experience to work for you.

H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way – Colorado Criminal Law – Possible Defenses In Colorado Domestic Violence Cases.

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Colorado Criminal Law - Possible Defenses In Colorado Domestic Violence Cases

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H. Michael Steinberg