UPDATE | March 5 — The Colorado House of Representatives passed HB24-1072, which would prohibit using what a victim was wearing at the time of the sexual assault or their past sexual history with a defendant as evidence to prove consent, on the morning of March 5.
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DENVER — A bill introduced in Colorado's state legislature aims to provide survivors of sexual assault certain protections when it comes to what can be presented as evidence during criminal proceedings.
HB24-1072, a bipartisan bill, would eliminate an exception under Colorado law that allowed evidence of a survivor's prior or subsequent sexual relationship with the defendant to be entered into court automatically, instead requiring a judge to evaluate the relevance of such evidence.
“What this bill does is actually make sure that if you did have a prior relationship with your offender, that's not used against you in court," said Jessica Dotter, the sexual assault resource prosecutor with the Colorado District Attorneys' Council (CDAC). “One third of sexual assault victims are victimized by an intimate partner, and they deserve to be treated exactly the same as any other victim. Just because they allowed consent previously, doesn't mean it was for life.”
CDAC is supporting the bill, which also would not allow a survivor's wardrobe or hairstyle at the time of the reported assault to be used against them in court as evidence of consent.
“It's unfortunate, but right now a big strategy is to try to blame a victim for their part in the assault, which just is not fair," said Dotter. “They worry that they won't be believed. They worry that they'll be shamed. They worry that they'll be blamed... Unfortunately, I think a reason why many victims do not report and don't engage and participate in the system once they are in it is because they know that they're going to have to face their offender in court, and that the system is really built to protect people from being wrongfully convicted.”
In addition, HB24-1072 aims to prohibit the admission of evidence regarding a survivor's mental health that is offered by the defendant if they are a psychotherapist accused of unlawful sexual behavior, unless the court finds the evidence is relevant.
“This bill protects them from being shamed or blamed for what they were wearing, shamed or blamed by having a previous sexual relationship, and should help them feel comfortable and confident that Colorado is behind them and ensuring that they can they can report their offender and not be punished for it," said Dotter.
According to the Colorado Department of Public Health and Environment, 1 in 3 Coloradans experience some form of sexual violence in their lives.
The Rape, Abuse & Incest National Network (RAINN) reports nationwide, the majority of sexual assaults are not reported to police.
Kelsey Harbert supports the bill too, for very personal reasons.
“When I was 10, I was molested by a family member," said Harbert, who lives in Denver. “I thought I would get in trouble, and it was like this big secret I needed to keep for as long as possible... When I hit like 12 or 13 I just felt like I was sort of tainted and just so different from the other kids.”
Nearly two decades later in 2019, Harbert went to New York to study under a researcher at New York University for the summer. Right after she moved to the city, Harbert said she and a friend from her lab went out to see the Empire State Building at night. Harbert said they encountered an actor.
“Within, you know, less than 10 seconds of being near him, he touched me without consent in an intimate area. And I was so shocked. I was completely caught off guard with that, I've never had that experience before," Harbert said. “It immediately felt wrong, and it felt like he'd done it before.”
Harbert said she reported what happened to police.
“They pulled the video footage, and they verified what I'd said. And then from there, my entire life got just turned like inside out and upside down within a few hours after reporting that," said Harbert.
Since the case was high-profile, she said many people scrutinized her online.
“Hundreds of people I don't know, who are evaluating exactly what I'm wearing down to the shoes. Was it heels or not? And how low cut was the romper I was wearing? And was my hair done?” Harbert recalled. “Or it would be, 'She's not even dressed up, she must have been desperate.'”
Harbert said the impact the court proceedings had on her mental health was enormous.
“I wanted to not exist. I mean, and I mean, in like, the literal sense. I didn't want to exist anymore. For the first six months of that after coming forward," said Harbert. "It made me just feel so incredibly alone and so afraid of the judgment that I didn't even want to be around anymore. It was horrible. It was horrific. And it's still, every time there's a wave of it.”
Over the last few years, Harbert said she realized something was stolen from her. She had completely been changed as a person.
Now, speaking in support oh HB24-1072, Harbert knows her story resonates with so many others.
“When we come forward, we are raising awareness in society and we're challenging the system and we're holding the system accountable," said Harbert. "And on a human level, we are validating and hopefully protecting others, even though it's not our job. It is something that we do have control over in a very uncontrollable situation.”
Most lobbyist groups listed on the Secretary of State's website are either supporting or monitoring the bill. The Colorado Criminal Defense Bar (CCDB) is the only one opposing it. On Sunday, a CCDB representative said they do not have a statement to provide Denver7 with at this time.
HB24-1072 is scheduled to go before the House Judiciary Committee on Feb. 27.
