(1) Evidence of a victim's, defendant's, or witness's actual or perceived gender identity, gender expression, or sexual orientation offered in relation to an affirmative defense or pursuant to rule 404 of the Colorado rules of evidence may be admissible only at trial and shall not be admitted in any other proceeding except at a proceeding pursuant to subsection (2) of this section. At trial, evidence of a victim's, defendant's, or witness's actual or perceived gender identity, gender expression, or sexual orientation offered by any party in relation to an affirmative defense or pursuant to rule 404 of the Colorado rules of evidence is presumed to be irrelevant.
(2) In any criminal prosecution, if evidence of a victim's, defendant's, or witness's actual or perceived gender identity, gender expression, or sexual orientation is to be offered by any party at trial in relation to an affirmative defense or pursuant to rule 404 of the Colorado rules of evidence, the following procedures shall be followed:
A written motion must be made at least thirty-five days prior to trial, unless later forgood cause shown, to the court and to the opposing parties stating that the moving party has an offer of proof of the specific factual relevancy and materiality of evidence of a victim's, defendant's, or a witness's actual or perceived gender identity, gender expression, or sexual orientation;
The written motion must be accompanied by an affidavit in which the offer of proofis stated;
If the court finds that the offer of proof is sufficient, the court shall notify the otherparties. If the prosecution stipulates to the facts contained in the offer of proof, the court shall rule on the motion based upon the offer of proof without an evidentiary hearing. Otherwise, the court shall set an in-camera hearing prior to trial. In the hearing, to the extent the facts are in dispute, the court may allow a presentation of the offer of proof, including but not limited to the presentation of witnesses.
An in-camera hearing may be held during trial if evidence first becomes available atthe time of the trial or for good cause shown;
At the conclusion of the hearing, or by written order if no hearing is held, if the courtfinds that the evidence proposed to be offered regarding a victim's, defendant's, or a witness's actual or perceived gender identity, gender expression, or sexual orientation is relevant to a material issue to the case, the court shall order that evidence may be introduced and prescribe the nature of the evidence or questions to be permitted. The moving party may then offer evidence pursuant to the order of the court.
All motions and supporting documents filed pursuant to this section must be filedunder seal and may be unsealed only if the court rules the evidence is admissible and the case proceeds to trial. If the court determines that only part of the evidence contained in the motion is admissible, only that portion of the motion and supporting documents pertaining to the admissible portion may be unsealed.
The court shall seal all court transcripts, digital or other recordings, and records ofproceedings, other than minute orders, of a hearing held pursuant to this section. The court may unseal the transcripts, digital or other recordings, and records only if the court rules the evidence is admissible and the case proceeds to trial. If the court determines that only part of the evidence is admissible, only the portion of the hearing pertaining to the admissible evidence may be unsealed.
(3) (a) In any criminal prosecution, the court may, at any time upon motion of the prosecution or on the court's own motion, issue a protective order pursuant to the Colorado rules of criminal procedure concerning disclosure of information relating to the victim or witness. The court may, at any time upon motion of the defendant or on the court's own motion, issue a protective order pursuant to the Colorado rules of criminal procedure concerning disclosure of information relating to the defendant. The court may punish a violation of a protective order by contempt of court.
(b) The person who would be the subject of the protective order may object to the motion for a protective order.
If evidence of a victim's, defendant's, or witness's actual or perceived gender identity,gender expression, or sexual orientation is admitted at trial, the court shall instruct the jury to not allow bias or any kind of prejudice based upon gender identity, gender expression, or sexual orientation to influence its decision. If admitted for a limited purpose, the court shall further instruct the jury as to the limited purpose or purposes for which the evidence is admitted and for which the jury may consider it.
This section does not apply when evidence of a victim's actual or perceived genderidentity, gender expression, or sexual orientation is offered in a criminal prosecution for a biasmotivated crime as described in section 18-9-121. In such prosecutions, the rules of evidence shall govern the admissibility of evidence of a victim's actual or perceived gender identity, gender expression, or sexual orientation.
As used in this section, unless the context otherwise requires:
"Gender identity" and "gender expression" have the same meaning as in section 18-1901 (3)(h.5).
"Intimate relationship" has the same meaning as in section 18-6-800.3.
"Sexual orientation" has the same meaning as in section 18-9-121 (5)(b).
Source: L. 2020: Entire section added, (SB 20-221), ch. 279, p. 1366, § 4, effective July 13.
Cross references: For the legislative declaration in SB 20-221, see section 1 of chapter 279, Session Laws of Colorado 2020.