Sunday, September 30, 2012

Legal Reboot 2: Colorado


Author's Note:

Yes, out of alphabetical sequence, doing them as I get them (-:

Getting more familiar with EndNote, I like this citation format a lot better! (MHRA)

Colorado's case law on adultery and bigamy is scary short, especially considering the lack of actually listing a punishment for it's adultery law!

Regardless, here it is!

- Jason

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Non-Monogamy and the Law
Review of Colorado

Aggressive Bigamy
Adultery Present
No Fornication
State Category: Resistant


Bigamy:
Issue and Rule:
This is an assessment of the legal liability that non-monogamous families encounter through Colorado’s bigamy law. The primary rules governing bigamy in Colorado are statutes 18-6-201[2], 18-6-202[6] and 18-6-203[4]. Punishment is governed by statute 18-1.3-401[5].

Analysis:
Colorado bigamy contains a cohabitation clause[2], creating liability if a married individual is cohabiting with another. Because of this, bigamy can bypass common law marriage’s requirement that the couple actually put themselves out as married[3] and can charge on cohabitation directly. There are limits on such a charge, as the couple must act as if they were married[4, 7], but this is vague and undefined within the law, though regular visitations to one’s partner can qualify, but the exact threshold is undefined[7]. This is also applicable regardless of how long the individuals have been cohabiting together[7].
Despite the traditional restriction on one’s spouse testifying against their partner without consent, in Colorado, bigamy is considered an exception to this rule[8], and a married partner may testify against their spouse in such cases.
Punishment for bigamy is as a class 6 felony[2] and is punishable by a fine from $1,000 to $100,000[5].

Assessment:
Colorado’s bigamy law is unusually broad in its application of cohabitation, including marriage-like cohabiting that can occur outside of one’s residence. Because of this, bigamy in Colorado can apply to swingers and open relationships, and will be assessed as such. The cohabitation clause makes things very tricky for non-dyadic families as well (polyamorous and polyfidelitous), as even having separate residences wouldn't be enough to protect against the cohabitation clause.

Adultery:
Issue and Rule:
This is an assessment of the legal liability that non-monogamous families encounter through Colorado’s adultery law. The primary rule governing adultery in Colorado is statute 18-6-501[1].

Analysis:
It should be first noted that adultery has no listed punishment for it in Colorado law, despite existing under the criminal code[1]. It is uncertain what exact liabilities are encountered by non-monogamists from this law. It is clear that adultery is broader than the cohabitation clause for bigamy, requiring only that the couple have any sexual intercourse contact[1] compared to acting as if they were married[7].

Assessment:
Because of the lack of punishment listed for adultery, this makes it challenging to determine liability. Is punishment determined by the jury, the judge? Is there no punishment? Because of how broad adultery is defined, all non-monogamists would be liable under this law, however it is unclear what the exact nature of that liability is.

 Colorado Summary:
Prior to starting the summary, it should be noted that there is a large deficiency of case law supporting Colorado’s adultery and bigamy laws. In reading what case law there is, much opinion was drawn, persuasively, from courts outside of Colorado, and from cases which aren't directly applicable (though still closely related) to their respective laws. This, combined with the lack of punishment information for adultery, makes a complete assessment effectively impossible.
Despite this, some things can be said concretely: Because of the broad definition of cohabitation, most non-monogamous families will be impacted by Colorado’s bigamy law. This may affect swingers to a lesser degree, as the lack of emotional non-monogamy would likely mean that swingers wouldn't be engaging in ‘marriage-like’ activities with their external partners. If the swinger couple regularly sees the same people, however, this may put them at risk for liability under bigamy.
For non-swinger families, the liability is particularly strong, especially in the case of polyamorous and polyfidelitous families as the multi-partner cohabiting will almost certainly qualify as marriage-like behavior.
Non-married families have an easier time, however caution must be used as common law marriage is applicable if the family is putting themselves out in any way as being married. If an unmarried family is recognized to have a common law marriage, all of the above liabilities apply to them.

Ranking Rationale:
Despite Colorado’s adultery law having no indicated punishment, it is listed as being fully present due to the broad definition of cohabitation for bigamy. Because of this expanded definition, bigamy is listed as being aggressive.
As there is no fornication law, and unmarried families would need to actually put themselves out as married, fornication is not considered to be present.


1 'Adultery', in 18-6-501 (USA - Colorado: 2012).
2 'Bigamy', in 18-6-201 (USA - Colorado: 2012).
3 'Davis V. The People',  (Supreme Court of Colorado, 1928), p. 295.
4 'Definitions', in 18-6-203 (USA - Colorado: 2012).
5 'Felonies Classified - Presumptive Penalties', in 18-1.3-401 (USA - Colodaro: 2012).
6 'Marrying a Bigamist', in 18-6-202 (USA - Colorado: 2012).
7 'The People V. Bright',  (Supreme Court of Colorado, 1925), p. 563.
8 'Schell V. The People',  (Supreme Court of Colorado, 1918), p. 116.

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