Colorado Statutes relating to JonBenet Ramsey’s death

[lawstudent]

Agree with the sexual assault being what raised it to felony murder, but it still doesn't make sense that no one was indicted for felony murder - however, as I said, the jury may have been confused.

Kidnapping can have very technical definitions in terms of what rises to "holding" someone against their will. But it still always involves unlawfully holding someone against their will with the intent to move them from the area. Parents can't unlawfully hold their underage children. Even if they chained the child to the bed for 10 years, they would be charged with abuse, not kidnapping. Unless they are a noncustodial parent, they can keep their children wherever they want. And if it were the Ramseys, they weren't trying to take her anywhere else. While dragging someone off a running trail into the nearby woods could constitute kidnapping, I don't think that could ever work in the same house unless there was some secret compartment or something.

 

[questfortrue]

Agree with the sexual assault being what raised it to felony murder, but it still doesn't make sense that no one was indicted for felony murder - however, as I said, the jury may have been confused.
~RSBM~
BBM

If a sexual assault was perpetrated by the underage male, then there was no crime of a sexual assault. In Colorado there needs to be 4 years difference between siblings, for a crime of incest/sexual assault to have occured. If an adult perpetrated the assault, that's a different issue, and there is no statute of limitations, as per the change in law in 2006, which was applied retroactively to July 1, 1996.

 

[lawstudent]

If a sexual assault was perpetrated by the underage male, then there was no crime of a sexual assault. In Colorado there needs to be 4 years difference between siblings, for a crime of incest/sexual assault to have occured. If an adult perpetrated the assault, that's a different issue, and there is no statute of limitations, as per the change in law in 2006, which was applied retroactively to July 1, 1996.

Yes, that's why I said the jury may have gotten confused. A lot of people don't understand the difference between the crime of sexual assault and the act of sexual abuse - like the difference between the crime of murder and the act of killing. It makes absolutely no sense otherwise to indict them for any sort of contribution to a murder, felony murder or otherwise, without having some third person they believed was guilty of murder.

 

[bettybaby00]

Yes, that's why I said the jury may have gotten confused. A lot of people don't understand the difference between the crime of sexual assault and the act of sexual abuse - like the difference between the crime of murder and the act of killing. It makes absolutely no sense otherwise to indict them for any sort of contribution to a murder, felony murder or otherwise, without having some third person they believed was guilty of murder.

Exactly! And I doubt that 3rd person was a sexed crazed intruder.

 

[questfortrue]

Yes, agreed, it doesn’t make a lot of sense to indict them on count VII, accessory after the fact, unless there was someone who was considered responsible, which would be in count IVa of the charges. Nor am I disagreeing with anyone’s theory as to who was the “real” perpetrator – behind door #3, the “elephant in the room” otherwise known as the underage male. (Silverman’s speculation about the other 7 charges not agreed upon by the GJ and his interpretation of the 2 counts comprising the TB, was just that: his interpretation.) My post was simply an attempt to circle back to the question that OTG originally posted in this thread, whether the GJ listed TB charges have all expired.

 

[bettybaby00]

If a sexual assault was perpetrated by the underage male, then there was no crime of a sexual assault. In Colorado there needs to be 4 years difference between siblings, for a crime of incest/sexual assault to have occured. If an adult perpetrated the assault, that's a different issue, and there is no statute of limitations, as per the change in law in 2006, which was applied retroactively to July 1, 1996.

BBM

Wow, really!?

Man the age factor really played a role in this. If it had happened 2 weeks later, and BR was 10, they still wouldn't have been 4 years apart according to the calendar. :banghead:

Is this why there was no reference to "sexual assault" in the TBs? And possibly why Kolar was trying to look at it from the kidnapping angle?

 

[lawstudent]

Are you sure on those laws?

I know many states have 4 year statutory rape laws, to take into account teenage relationships, even incestuous ones. But if it's a forcible sexual assault, I didn't really think any difference in years applied to that. Maybe very young children can't be held responsible like with murder, which would make sense. But a 14 and a 10 year old where the 14 year old forces sexual contact? I'm pretty sure that's prosecutable as a sexual assault. The incest part would be an additional crime they are unlikely to punish children for.

ETA: And is there some way social services would have had to become involved if any of this got out, even at a grand jury proceeding? Maybe no mandatory reporting laws back then?

 

[bettybaby00]

Are you sure on those laws?

I know many states have 4 year statutory rape laws, to take into account teenage relationships, even incestuous ones. But if it's a forcible sexual assault, I didn't really think any difference in years applied to that. Maybe very young children can't be held responsible like with murder, which would make sense. But a 14 and a 10 year old where the 14 year old forces sexual contact? I'm pretty sure that's prosecutable as a sexual assault. The incest part would be an additional crime they are unlikely to punish children for.

ETA: And is there some way social services would have had to become involved if any of this got out, even at a grand jury proceeding? Maybe no mandatory reporting laws back then?

Kolar discusses the DSS aspect...

Sgt. Mason had attempted to arrange another interview with Burke during his brief visit to the Fernie residence on the evening of December 27th, but as with Patsy, Dr. Buef refused to allow that to occur. When the second interview was subsequently scheduled, it was conducted by a member of the Department of Social Services (DSS), and not a law enforcement officer. As I write this chapter, it occurs to me that I never asked anyone involved in the investigation how it came to pass that Burke was interviewed so early in the investigation and at a time when his parents were refusing to participate in follow-up interviews with police investigators. As noted previously, however, this interview had been one of the recommendations made by the Child Fatality Review Team that had been convened by the Coroner on the afternoon of JonBenét’s autopsy. So I have to presume that it had something to do with DSS protocols that required the removal of siblings from the home in the event of a child’s death. I suspect that the Ramseys capitulated to this second interview because they didn’t want to give up temporary custody of their son to the Department of Social Services. At the family’s insistence, the interview, conducted on January 8, 1997, was performed only by personnel from DSS, and Dr. Susanne Bernhard was the sole adult in the room with Burke. She later provided her assessment of his reaction to events surrounding the kidnapping and murder of his sister to one of the Boulder investigators.


Dr. Bernhard had expressed concerns about having follow-up interviews with Burke because of the “affect” he was exhibiting toward his family. These never took place, however, and apparently the one interview that DSS conducted with him on January 8, 1997, got the family off the hook. Burke was able to remain in the custody of his parents.

Also...

My review of the investigation revealed that little attention had been paid to Burke Ramsey’s possible involvement in the events of December 25th and 26th.

From the outset of this investigation, the Ramsey family appeared to have gone to great lengths to distance Burke from Boulder Police investigators.

However, this doesn't fully address the issue of DSS becoming involved as a result of whatever the GJ may or may not have found during their investigation.

Eta: and there's the tidbit about the Dr. not allowing an interview with BR.

 

[lawstudent]

I know this is must be old news, but how is Kolar allowed to write this book? Is it because he only uses publicly available information?

 

[bettybaby00]

I know this is must be old news, but how is Kolar allowed to write this book? Is it because he only uses publicly available information?

Yes, I think for the most part, a lot of it was in the public domain. He never discussed anything regarding GJ.

And from a libel standpoint...Clearly the Rs weren't going to go near this with a 10 foot pole.

They completely ignored it. I was reading an interview with Kolar when the book came out, and when asked about it Wood said, "I haven't read it, doesn't matter the family has been exonerated."

Freaking Lacy :stormingmad:

 

[lawstudent]

I guess I just never hear of people who worked on the police investigation writing books about it - I figured there was some rule against it.

I don't know what the story is here. Grand juries indict very easily and can be pretty confused, so I don't know what to make of the indictments. Everything can be interpreted multiple ways.

 

[BOESP]

I guess I just never hear of people who worked on the police investigation writing books about it - I figured there was some rule against it.

I don't know what the story is here. Grand juries indict very easily and can be pretty confused, so I don't know what to make of the indictments. Everything can be interpreted multiple ways.

I don't believe Kolar was working on the case when he wrote his book. Freedom of speech is a wonderful thing. Our country was built on it.

BBM. That argument is refuted in Logic 101. It's a sweeping generalization and an ad hominem fallacy.

I trust grand juries more than I trust lawyers. The pittance the grand jury members receive generally makes for honest bedfellows and they have no ego or reputation to maintain. Some are prettier than others. :moo:

 

[questfortrue]

BBM

Wow, really!?

Man the age factor really played a role in this. If it had happened 2 weeks later, and BR was 10, they still wouldn't have been 4 years apart according to the calendar. :banghead:

Is this why there was no reference to "sexual assault" in the TBs? And possibly why Kolar was trying to look at it from the kidnapping angle?

From what I've read it’s the fact that BR, if he was responsible for JB’s acute/chronic injuries, was under the age of 10. Over the age of 10 it could have been aggravated incest, as per statute 18- 6-302 and a class 3 felony because JB was under the age of 10.

Between BR and JB, before JB’s death, yes, it is incest, but not a situation which would have criminal liability. It would be the domain of child protective services if it were revealed.

Sexual assault charges could also apply, in addition to the aggravated incest charge if a perpetrator was over 10 and the victim under 10, with at least 4 years age difference.

_________
Holly Smith was one of the lead investigators of Boulder child protective services in sexual assault cases. She was called in initially for her take on the circumstances of the R crime. According to her, the case became quickly territorial and the BPD dipensed with her participation. Information she gathered when she visited JB's bedroom was not included in the book she wrote, Fire of the Five Hearts, at the advice of her publisher.

 

[bettybaby00]

Somewhat OT...

questfortrue


I just noticed your signature, and find it very interesting as I haven't heard of her involvement in this case.

Is there any further info you can provide?

If you think it's more appropriate to PM, please do

 

[otg]

Somewhat OT...

questfortrue


I just noticed your signature, and find it very interesting as I haven't heard of her involvement in this case.

Is there any further info you can provide?

If you think it's more appropriate to PM, please do

Hi, betty. Not to try and answer for QFT, but I can reference the following two posts for information on Holly Smith (and it's not OT):

Websleuths Crime Sleuthing Community - View Single Post - Feces :/


Websleuths Crime Sleuthing Community - View Single Post - What does Kolar say about

 

[otg]

(bbm)

Agree with the sexual assault being what raised it to felony murder, but it still doesn't make sense that no one was indicted for felony murder - however, as I said, the jury may have been confused.

Kidnapping can have very technical definitions in terms of what rises to "holding" someone against their will. But it still always involves unlawfully holding someone against their will with the intent to move them from the area. Parents can't unlawfully hold their underage children. Even if they chained the child to the bed for 10 years, they would be charged with abuse, not kidnapping. Unless they are a noncustodial parent, they can keep their children wherever they want. And if it were the Ramseys, they weren't trying to take her anywhere else. While dragging someone off a running trail into the nearby woods could constitute kidnapping, I don't think that could ever work in the same house unless there was some secret compartment or something.

I agree with you, lawstudent, that there are different technical definitions which would make a particular action rise to the level of Kidnapping. Kolar suggested in his book that this aggravating circumstance could be used to elevate the homicide to Felony Murder. I thought it would be a stretch for a prosecutor to argue this to a jury because JonBenet was never removed from the home and because it was done (assumed) by a family member (any family member -- consider each). However, I ran across this that I hadn’t read before which could possibly be used (bbm):

C.R.S. 18-3-305 (KIDNAPPING)
18-3-305. Enticement of a child

(1) A person commits the crime of enticement of a child if he or she invites or persuades, or attempts to invite or persuade, a child under the age of fifteen years to enter any vehicle, building, room, or secluded place with the intent to commit sexual assault or unlawful sexual contact upon said child. It is not necessary to a prosecution for attempt under this subsection (1) that the child have perceived the defendant's act of enticement.

(2) Enticement of a child is a class 4 felony.

Attempted sexual assault of any degree sufficient. This statute requires proof only that the defendant acted with the intent to cause the result of a sexual assault of some degree upon a victim younger than fifteen years of age. Failure to complete sexual assault of particular degree is irrelevant. People v. Black, 759 P.2d 746 (Colo. App. 1988).

Defendant's invitation to child to sit on the couch satisfies the element of "inviting or persuading the child to enter a room". Invitation necessarily invited the child to enter a particular room in the home where the couch was located. People v. Douglas, 2012 COA 57, 269 P.3d 234.
​

So what constitutes sexual assault? That is answered in C.R.S. 18-3-402 (Sexual assault):

(1) Any actor who knowingly inflicts sexual intrusion or sexual penetration on a victim commits sexual assault if:

(a) The actor causes submission of the victim by means of sufficient consequence reasonably calculated to cause submission against the victim's will; or

(b) The actor knows that the victim is incapable of appraising the nature of the victim's conduct; or

(g) The actor, while purporting to offer a medical service, engages in treatment or examination of a victim for other than a bona fide medical purpose or in a manner substantially inconsistent with reasonable medical practices; or (Playing “doctor”? Okay, that’s probably too much of a stretch.)

Proof of sexual intrusion is sufficient to support a conviction for first degree sexual assault. People v. Lankford, 819 P.2d 520 (Colo. App. 1991).

Unlawful sexual contact is a lesser included offense of sexual assault based on sexual intrusion. Proof of sexual intrusion requires proof of sexual contact with a person's intimate parts satisfying the strict elements test, and unlawful sexual contact involves less serious injury than sexual intrusion and lesser culpability than sexual assault. People v. Loyas, 259 P.3d 505 (Colo. App. 2010).
​

The following (definitions) may be more than those who might be easily offended care to read about. But in order to understand the laws as they apply, it’s worth understanding how the Colorado Statutes use the terms:

C.R.S. 18-3-401 (UNLAWFUL SEXUAL BEHAVIOR)

18-3-401. Definitions:

(4) "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.

(5) "Sexual intrusion" means any intrusion, however slight, by any object or any part of a person's body, except the mouth, tongue, or penis, into the genital or anal opening of another person's body if that sexual intrusion can reasonably be construed as being for the purposes of sexual arousal, gratification, or abuse.

(6) "Sexual penetration" means sexual intercourse, cunnilingus, fellatio, analingus, or anal intercourse. Emission need not be proved as an element of any sexual penetration. Any penetration, however slight, is sufficient to complete the crime.
​

 

[DeeDee249]

I know this is must be old news, but how is Kolar allowed to write this book? Is it because he only uses publicly available information?

I think anyone can write anything they want if it is the truth. Obviously he'd be sued if he was lying. I believe they can't stop the publication if is the truth, especially if it is a murder case that has been in the public eye for 18 years. He was an investigator on this crime- he has a lot of inside information. Some he can talk about and some he can't. I believe the ONLY reason he has not named the perp publicly is because the perp was underage.

 

[lawstudent]

I think anyone can write anything they want if it is the truth. Obviously he'd be sued if he was lying. I believe they can't stop the publication if is the truth, especially if it is a murder case that has been in the public eye for 18 years. He was an investigator on this crime- he has a lot of inside information. Some he can talk about and some he can't. I believe the ONLY reason he has not named the perp publicly is because the perp was underage.

I didn't meant to imply I didn't think there was free speech on these matters, but I never hear of police writing books about investigations, so I thought maybe there was some other rule that limited their ability to do so in relation to investigations they worked on - more like a professional or disciplinary rule instead of an actual law. I always see the local journalists writing the crime novels - never the people who actually worked on it. Wasn't sure if there was some sort of confidentiality rule that applied, like with the grand jury. And that's with regard to non-public information, obviously, but people seem to imply he knows a lot more and hints at it as much as possible in that book.

And by saying grand juries indict easily and can be confused, it's not a logical fallacy because I never claimed it was conclusive of anything. I'm just putting it out there as a possibility. "Grand juries will indict a ham sandwich" is a commonly recognized phrase. It doesn't mean that there isn't any logic to their decisions, just that it by no means guarantees that the person will be found guilty of those charges. And the fact that no one was indicted for murder seems to mean they were indeed confused about something.

 

[bettybaby00]

I think anyone can write anything they want if it is the truth. Obviously he'd be sued if he was lying. I believe they can't stop the publication if is the truth, especially if it is a murder case that has been in the public eye for 18 years. He was an investigator on this crime- he has a lot of inside information. Some he can talk about and some he can't. I believe the ONLY reason he has not named the perp publicly is because the perp was underage.

BBM
Agreed.

Makes me ask, did ST ever weigh in on Kolar's theory?

 

[otg]

If a sexual assault was perpetrated by the underage male, then there was no crime of a sexual assault. In Colorado there needs to be 4 years difference between siblings, for a crime of incest/sexual assault to have occured. If an adult perpetrated the assault, that's a different issue, and there is no statute of limitations, as per the change in law in 2006, which was applied retroactively to July 1, 1996.

Yes, that's why I said the jury may have gotten confused. A lot of people don't understand the difference between the crime of sexual assault and the act of sexual abuse - like the difference between the crime of murder and the act of killing. It makes absolutely no sense otherwise to indict them for any sort of contribution to a murder, felony murder or otherwise, without having some third person they believed was guilty of murder.

Yes, agreed, it doesn’t make a lot of sense to indict them on count VII, accessory after the fact, unless there was someone who was considered responsible, which would be in count IVa of the charges. Nor am I disagreeing with anyone’s theory as to who was the “real” perpetrator – behind door #3, the “elephant in the room” otherwise known as the underage male. (Silverman’s speculation about the other 7 charges not agreed upon by the GJ and his interpretation of the 2 counts comprising the TB, was just that: his interpretation.) My post was simply an attempt to circle back to the question that OTG originally posted in this thread, whether the GJ listed TB charges have all expired.

BBM

Wow, really!?

Man the age factor really played a role in this. If it had happened 2 weeks later, and BR was 10, they still wouldn't have been 4 years apart according to the calendar. :banghead:

Is this why there was no reference to "sexual assault" in the TBs? And possibly why Kolar was trying to look at it from the kidnapping angle?

Wow. Several related issues coming in here that I'll try to group together and answer. I’m not sure if I can adequately explain everything with my paltry understanding, and I don't claim to know any more than anyone else who reads the Colorado Statutes. But here goes:

There are different crimes which have different age restrictions that define how they are classified. As I understand, sexual assault has no age limit on the perpetrator (the laws seem to refer to him/her as the “actor”, the one who commits the act). But here again, as with other laws, even though a person under a specified age (10) is considered incapable of criminal intent and therefore unable to be held responsible, the laws specifically state that this doesn’t preclude one from being able to commit an act which is prohibited by law (I hope that makes sense the way I worded it, because it’s important in understanding what can and cannot be prosecuted.)

Since we (and the laws) recognize that someone under a certain age is unable to understand the consequences of their actions, the laws protect them (the victim(s)) from being coerced into doing something that an adult might otherwise be able to avoid. This is where a crime like Statutory Rape would apply, saying that even though a minor might have given his/her permission for something, the law doesn’t recognize their ability to make an adequately “informed consent”. And then, the Colorado Statutes go further in classifying even younger ages than 18 (I think 16 and 12 are specifically referred to) as particularly egregious, and they also give age differences (4 and 10) as being what would constitute those particular elements of the crime.

I believe (as QFT mentions above) that besides murder, certain crimes against children are the only other felonies that have no SoL (this due to a child later reaching an age at which they can be expected to remember things that happened to them as a child that they know as an adult was wrong).

As for the members of a GJ being confused about the laws that apply, I would think that this is why (one of the reasons anyway) a GJ will have someone from the DA’s office “lead” the process. In the case of the RGJ, that job fell on the shoulders of Michael Kane. Obviously members of the community called on to serve would not be familiar with the applicable laws. And we must know that it was not one of the jurors who wrote up the True Bills referring to the applicable statutes. So I don’t think I would go so far as to say that it’s very likely that this (or any) GJ was confused about the laws. Kane was there to explain anything they had a question on.

It makes absolutely no sense otherwise to indict them for any sort of contribution to a murder, felony murder or otherwise, without having some third person they believed was guilty of murder.

I don't know what the story is here. Grand juries indict very easily and can be pretty confused, so I don't know what to make of the indictments. Everything can be interpreted multiple ways.

It makes “absolutely no sense” unless you consider who that third person might have been. That is why even some attorneys and other talking heads keep saying they don’t understand what the GJ was thinking (they just "don't want to go there, Pal."). It just makes absolutely no sense any other way you look at it. I think the RGJ actually did figure out what happened. I think that's one more reason you don't hear any of them speaking out. What good would come of it? There is only person who can still be charged with anything associated with what happened, and in order to prosecute him, the details of what happened would mean ruining the life of someone else who was too young to understand the consequences of what he was doing.