Colorado has no criminal offense called battery. The word appears in plenty of legal writing and in the law of other states, but it is not a charge a Colorado prosecutor can file. What other states call battery, harmful or offensive physical contact, Colorado charges as assault, and assault in Colorado requires bodily injury. What other states call assault, a threat that puts someone in fear without any contact, Colorado charges as menacing. Knowing which of those two statutes a case sits under changes the elements the prosecution has to prove, the possible sentence, and the defense.
Key Takeaways
- There is no offense of battery in the Colorado Criminal Code. A charging document will say assault or menacing.
- Colorado assault requires bodily injury. Third degree assault, C.R.S. 18-3-204(1)(a), reaches a person who knowingly or recklessly causes bodily injury, or who causes it with criminal negligence by means of a deadly weapon.
- A threat with no contact is menacing, C.R.S. 18-3-206: knowingly placing or attempting to place another person in fear of imminent serious bodily injury, by any threat or physical action.
- The degree of an assault charge turns on the injury, the mental state, whether a deadly weapon was used, and who the person injured was.
- Self-defense is an affirmative defense. The accused has to present some credible evidence to raise it, and then the prosecution must disprove it beyond a reasonable doubt. C.R.S. 18-1-407.
Why Does Colorado Not Have a Battery Charge?
The answer is in how the statutes are written. Read the three assault sections in order and each one describes an injury that was actually caused, not a threat that was made, so assault in Colorado occupies the ground battery occupies in other states. The threat, standing alone, was given its own section and its own name.
This matters in practice because people arrive at a first meeting describing what happened in the vocabulary of television, where assault means a threat and battery means a punch. In Colorado, the punch is the assault. The threat, standing alone, is a different statute with different elements and a different sentence.
What Is the Legal Definition of Assault in Colorado?
Colorado grades assault in three degrees, and every degree requires an injury.
Third degree assault, C.R.S. 18-3-204(1)(a), covers knowingly or recklessly causing bodily injury to another person, and covers causing bodily injury with criminal negligence by means of a deadly weapon. A separate provision, (1)(b), reaches a person who, with intent to harass, annoy, threaten, or alarm someone the person knows or should know is a peace officer, firefighter, emergency medical care provider, or emergency medical service provider, causes that person to come into contact with blood, urine, saliva, vomit, or similar material. Third degree assault is a class 1 misdemeanor.
Second degree assault, C.R.S. 18-3-203(1), covers a set of more serious injuries. Its prongs include causing bodily injury by means of a deadly weapon with intent to cause that injury, intentionally causing bodily injury to prevent a peace officer, firefighter, or emergency responder from performing a lawful duty, recklessly causing serious bodily injury by means of a deadly weapon, and drugging another person without consent for a purpose other than lawful medical treatment.
First degree assault, C.R.S. 18-3-202(1), is the most serious. It covers conduct such as causing serious bodily injury with intent to cause serious bodily injury by means of a deadly weapon, and knowingly engaging in conduct that manifests extreme indifference to the value of human life, creates a grave risk of death, and thereby causes serious bodily injury.
What Is Menacing, and When Is It Charged Instead?
Menacing is the Colorado charge for a threat that places someone in fear without touching them. C.R.S. 18-3-206 reaches a person who, by any threat or physical action, knowingly places or attempts to place another person in fear of imminent serious bodily injury.
Two features of that text decide most menacing cases. The fear must be of imminent serious bodily injury, not of harm generally. And the threat can be made by words, by a gesture, or by a physical action, so no weapon and no contact is required.
Menacing is a class 1 misdemeanor. It becomes a class 5 felony when it is committed by the use of a firearm, knife, or bludgeon, or by the use of a simulated firearm, knife, or bludgeon.
How Do the Penalties Compare?
The sentence follows the grade rather than the label, so the practical question in any case is which subsection the conduct falls under.
| Charge | Grade | Authorized sentence |
|---|---|---|
| Third degree assault | Class 1 misdemeanor | Up to 364 days, fine up to $1,000, or both |
| Menacing | Class 1 misdemeanor | Up to 364 days, fine up to $1,000, or both |
| Menacing with a firearm, knife, or bludgeon | Class 5 felony | 1 to 3 years, 2 years parole |
| Second degree assault, heat of passion | Class 6 felony | 1 year to 18 months, 1 year parole |
| Second degree assault | Class 4 felony | 2 to 6 years, 3 years parole |
| Second degree assault causing serious bodily injury during an enumerated felony | Class 3 felony | 4 to 12 years, 3 years parole |
| First degree assault, heat of passion | Class 5 felony | 1 to 3 years, 2 years parole |
| First degree assault | Class 3 felony | 4 to 12 years, 3 years parole |
Misdemeanor penalties are set by C.R.S. 18-1.3-501(1)(a.5) for offenses committed on or after March 1, 2022, and felony presumptive ranges by C.R.S. 18-1.3-401(1)(a)(V.5)(A) for offenses committed on or after July 1, 2020.
The class 3 row is narrower than it looks. Under C.R.S. 18-3-203(2)(b.5), that grade applies only where the person assaulted, other than a participant in the crime, suffered serious bodily injury during the commission or attempted commission of, or flight from, an enumerated felony such as murder, robbery, arson, burglary, escape, first degree kidnapping, or sexual assault. A serious injury outside that setting leaves the charge at class 4.
Two adjustments sit on top of the table and can move a real sentence well outside it. Heat of passion, defined the same way in both statutes, lowers the grade where the act causing the injury was performed upon a sudden heat of passion caused by a serious and highly provoking act of the intended victim. And a first degree assault conviction is sentenced under the crime of violence provision, C.R.S. 18-1.3-406(1)(a), which requires a term of at least the midpoint in, but not more than twice the maximum of, the presumptive range, as modified for an extraordinary risk crime.
Can Both Charges Be Filed Together?
Yes. Where the facts show a threat and then contact that caused injury, a prosecutor can charge menacing and assault from the same incident, and frequently does. The two statutes protect against different things, so neither is a lesser included version of the other in every case.
That has a strategic consequence. Defeating the assault count does not defeat the menacing count, because menacing does not require that anyone was injured. A defense has to answer both.
What Are Common Examples in Colorado?
A punch thrown in a bar fight that splits a lip is third degree assault, because it knowingly or recklessly caused bodily injury.
The same punch, thrown with a bottle and causing a serious injury, moves into second or first degree, depending on the mental state and the severity of the injury.
Pointing a firearm at someone during an argument, with no shot fired and no contact, is menacing, and the firearm makes it a class 5 felony.
Raising a fist and saying something threatening, without contact, may be menacing, but only if the threat was of imminent serious bodily injury. A threat of a lesser harm does not satisfy the statute.
How Does Colorado Treat Self-Defense?
C.R.S. 18-1-704(1) justifies using physical force on another person to defend oneself or a third person from what the actor reasonably believes to be the use or imminent use of unlawful physical force, and permits the degree of force the actor reasonably believes necessary for that purpose.
Deadly physical force is narrower. Under subsection (2), it may be used only if the actor reasonably believes a lesser degree of force is inadequate and one of three conditions is present: reasonable ground to believe that the actor or another person is in imminent danger of being killed or receiving great bodily injury; the other person is using or appears about to use physical force against an occupant of a dwelling or business establishment while committing or attempting burglary; or the other person is committing or appears about to commit kidnapping, robbery, sexual assault, or first or second degree assault.
The burden is commonly misunderstood. Self-defense is an affirmative defense, so under C.R.S. 18-1-407(1) the accused must present some credible evidence to raise it, unless the state’s own evidence already raises it. Once the issue is in the case, subsection (2) puts the burden back on the prosecution: guilt must be established beyond a reasonable doubt as to that issue as well as every element of the offense. The accused does not have to prove that the force was justified.
What Role Does Intent Play?
Mental state separates the degrees, and it is usually the most contested element in an assault case.
Third degree assault can rest on recklessness, or on criminal negligence where a deadly weapon caused the injury, so a prosecutor does not have to show that the accused meant to hurt anyone. Second and first degree assault turn on intent or knowledge as to the injury or the risk created. Menacing requires that the accused acted knowingly as to placing the other person in fear.
Because the statutes are written this way, a defense that the contact was accidental answers an intentional-injury charge but may not answer a recklessness charge, and the two require different evidence.
How to Get Help With an Assault or Menacing Charge
The first useful step is identifying the exact subsection charged, because that determines what has to be proven and what the exposure actually is. From there the work is evidence: medical records that establish or undercut the level of injury, video and witness accounts of who moved first, and the specific words and actions said to have created fear.
Masterson Hall defends assault and menacing cases in Denver and across Colorado. Call 720-445-5505 to discuss a pending charge.
Frequently Asked Questions
If Colorado has no battery charge, why do people keep using the word?
Because most states do have one, and the term is standard in civil tort law, where battery remains a recognized claim. A Colorado criminal charging document will not use it.
Can assault or battery charges affect child custody decisions in Colorado?
It can. Under C.R.S. 14-10-124(4)(a), where a claim of domestic violence or child abuse has been made or the court has reason to believe a party committed one, the court must consider that before allocating parental responsibilities and before reaching the ordinary best-interests factors. A finding of child abuse or neglect bars an award of mutual decision-making over the other party’s objection.
How does Colorado law address assault involving law enforcement officers?
Several provisions grade an assault higher when the person injured was a peace officer, firefighter, or emergency responder acting in the line of duty. Second degree assault under C.R.S. 18-3-203(1)(c) reaches intentionally causing bodily injury to prevent such a person from performing a lawful duty, and third degree assault under (1)(b) of C.R.S. 18-3-204 reaches causing contact with bodily fluids with intent to harass, annoy, threaten, or alarm.
What impact do prior convictions have on sentencing?
Prior convictions can raise the authorized range. Under C.R.S. 18-1.3-401(8)(a), being on parole, on probation, on bond pending sentencing after a probation revocation, confined as a convicted felon, or on appeal bond for another felony at the time of the offense requires a sentence of at least the midpoint of the presumptive range and permits up to twice its maximum.
Are restraining orders commonly issued in assault cases?
Yes, and one issues automatically. C.R.S. 18-1-1001(1)(a) creates a mandatory protection order against any person charged with a criminal violation of Title 18. It runs from the advisement of rights at arraignment or first appearance until final disposition unless the court orders otherwise, and it restrains the person charged from harassing, molesting, intimidating, retaliating against, or tampering with any witness to or victim of the acts charged.