Image Credit: Pixabay – geralt

The punishment doesn't always fit the crime when it comes to the criminal justice system in Adams, Denver, and Jefferson County. As an accomplished criminal defense lawyer for over 20 years, I have seen many good people overcharged with crimes. And, when it comes to sex crimes, the sentencing is often extremely unjust. For an example, let's look at a recent story where a Denver-area teacher has been sentenced indeterminately for his crimes.

“Cup Check” Result in Life in Prison in Colorado?

A Denver area teacher has been sentenced indeterminately. He was originally charged with 18 counts of Sexual Assault on a Child by a Person in a Position of Trust, but was convicted by a jury to 5 of the charges. As a result, he was sentenced to the Colorado Department of Corrections for 8 years to life. You would think that a lifetime sitting in prison would only be the result of violent or sexual abuse. But, this case is the perfect example of how you can be convicted of a serious sex offense without any actual sexual touching occurring. According to the news reports, the teacher was charged because he “struck male students' genitals.” He allegedly did this for “cup checks,” which is done to make sure the boys are geared up correctly for physical activity where they could get injured.

[pullquote align=”center” textalign=”center” width=”70%”]No children were injured or abused, but this teacher is being treated like a pedophile.[/pullquote]

Is Over-the-Clothing Touch Considered Sexual Assault?

When you read this story, the question which begs to be asked is: “Does over-the-clothing touch result in a Sexual Assault on a Child charge in Arapahoe, Douglas, and El Paso County?”  In order to answer this question, let's look at the statute for Sexual Assault on a Child by a Person in a Position of Trust – C.R.S. 18-3-405.3:

Any person who “knowingly subjects another…to any sexual contact commits sexual assault on a child by one in a position of trust if the victim is a child less than eighteen years of age and the actor committing the offense is one in a position of trust with respect to the victim.

The next question we need to ask is, “what is the definition of sexual contact?” This is defined under C.R.S. 18-3-401:

Sexual contact means the knowing touching of the victim's intimate parts by the actor, or of the actor's intimate parts by the victim, or the knowing touching of the clothing covering the immediate area of the victim's or actor's intimate parts if that sexual contact is for the purposes of sexual arousal, gratification, or abuse.

As you can see, the law includes the words – the “clothing covering the immediate area of the…intimate parts.” According to the statute, the District Attorney must also show the touching was for the purpose of “sexual arousal, gratification, or abuse.” In this teacher's case, the purpose of the touching didn't appear to be very clear. Instead, they based his motive on faulty reasoning, saying “if he had demonstrated the same behavior with female students, there would have been no doubt about his intent.” In other words, they couldn't establish his motive or purpose for the touching.

[pullquote align=”center” textalign=”center” width=”70%”]Why is this man who “doesn't do anything but think of others” being sent to prison for the rest of his life?[/pullquote]

Teacher Sentenced Indeterminately: Is this Just?

[pullquote align=”right” textalign=”center” width=”30%”]This teacher was sentenced as an example for the community. This isn't justice.[/pullquote]Before we write this teacher off as a monster who abuses children, let's take a moment to think about what he did. While “cup checking” isn't good behavior, should it result in a lifetime prison sentence, sex offender registration, and sex offender treatment? This teacher is being treated the same as a person who sexually assaults a child repeatedly. And, this teacher has no prior history of abuse of children. His mother testified on his behalf before sentencing, saying: “I hope to God you won't put him in prison. It will kill his spirit. He is the sweetest person I know. He doesn't do anything but think of others.” This doesn't sound like a pedophile, so why is this teacher being treated like one? This sentence is obviously unjust, so why is the court allowing it? We believe it is because of pressure from victims and special rights groups. Don't believe me? The mother of one of the alleged victim's sums it up perfectly when she says she knows the “community has seen more horrific crimes, but the court should make an example out of” the teacher to “deter future offenders.” This poor man will spend most of his life in prison as an example, even though (according to the judge) the “children were not physically injured.” Request a Free Consultation

If you or a loved one has been charged with a crime which is subject to indeterminate sentencing, it is vital that you work with a lawyer who will be your advocate. Be smart, exercise your right to remain silent, and contact an experienced criminal defense attorney at the O'Malley Law Office for a free consultation at 303-830-0880. Together, we can protect your future.