Harassment Charges in Colorado
The most common form of harassment I see on a daily basis in my practice is the “strike, shove, kick” variety. This is what is often charged in physical altercations when no injuries are sustained. (Note: If there are injuries, including pain, law enforcement will typically file third-degree assault charges.)
However, harassment charges in Colorado actually cover a wide range of acts, from unwanted physical contact to online messages that cross a certain line.
These cases might seem straightforward at first, but the law around harassment is shaped by years of Colorado Supreme Court and Court of Appeals decisions. This case law protects both public safety and free speech.
If you are facing a harassment charge, it helps to understand how the law works, what the prosecution must prove, and the defenses that have succeeded in real Colorado cases.
This blog focuses on criminal harassment under Colorado law, Colorado Revised Statutes 18-9-111. We’ll cover the types of harassment, highlight important cases, and show cases where courts have limited the law to protect constitutional rights.
Finally, we’ll give some examples of defenses that have worked in appellate courts, so you can see how these cases have played out in the past.
Types of Harassment Under Colorado Law
Colorado’s harassment statute lists several “varieties” of harassment. One thing each subsection has in common, is that they all require that the act be done with the intent to harass, annoy, or alarm another person.
Here are the main categories.
1. Physical Contact
Harassment includes striking, shoving, kicking, or touching another person with the intent to harass. These cases often arise from arguments or domestic disputes.
The injury does not need to be serious, which is why harassment can be charged even when conduct falls short of assault. Remember, if there is pain or injury, it will typically be charged as third-degree assault.
Quite commonly, police will stack the charges and you’ll see harassment and assault filed on the same case.
2. Obscene Language or Gestures in Public
It is a crime to direct obscene language or an obscene gesture at someone in a public place. Obscene has a specific legal meaning. It refers to explicit sexual content, not simple profanity.
This part of the statute is narrow because courts have made clear that most rude words and gestures are protected speech.
3. Following Someone
A person commits harassment by following another person in or around a public place with intent to harass. This is a lower-level version of stalking. One incident of following can lead to a charge if the intent is proven.
4. Unwanted Phone Calls
The statute prohibits repeated telephone calls that have no legitimate purpose of conversation. Hang-up calls, repeated calls at midnight, or constant ringing designed to disrupt someone’s privacy fall into this category.
5. Electronic Harassment
Colorado added electronic harassment in 2015 under Kiana Arellano’s Law. It includes sending electronic communications that threaten injury or contain obscene sexual content.
In 2022, the Colorado Supreme Court struck down part of this law, ruling that the phrase “intended to harass” was unconstitutional when applied to online speech that was merely annoying or offensive. Threats and obscene content remain criminal. Annoying or critical messages do not.
6. Fighting Words
violent response. These are known as fighting words, a narrow category of unprotected speech. The law requires proof that the words used would provoke an immediate breach of the peace. Read more about threats vs. protected speech.
7. Penalties and Domestic Violence
Harassment charges under CRS 18-9-111 are misdemeanors. When harassment involves intimate partners, the case often receives a domestic violence tag, which triggers mandatory protection orders and other consequences.
Some harassment cases involving bias motivation or physical contact may be charged as class 1 misdemeanors with higher penalties.
Landmark Colorado Cases on Harassment and Free Speech
Harassment laws often intersect with First Amendment rights. Colorado appellate courts have repeatedly reviewed the statute and struck down sections that criminalized protected speech. These cases shape how harassment charges work today.
Bolles v. People (Colorado Supreme Court 1975)
This foundational case involved mailed anti-abortion flyers. Prosecutors charged Bolles under the section that punished communications sent in a manner likely to harass or alarm.
The court struck the statute down as overbroad because it criminalized too much protected speech. The ruling forced the legislature to rewrite the law and remains one of the most important free speech decisions in Colorado harassment jurisprudence.
People v. Weeks (Colorado Supreme Court 1979)
Weeks made a series of sexually explicit phone calls to a woman’s home. He argued that the harassment statute’s obscenity provision was unconstitutional.
The Colorado Supreme Court rejected the challenge because his speech was legally obscene. The ruling confirmed that obscene or threatening calls fall outside First Amendment protection and can be prosecuted.
People v. Smith (Colorado Supreme Court 1993)
Smith challenged a subsection that criminalized repeated communications at inconvenient hours or in offensively coarse language.
The court agreed that the statute was vague and overbroad because it swept in protected speech. After this decision, the legislature narrowed the law so that it now applies only to fighting words or true intrusions into privacy.
Fun fact: this case was appealed by my first chief at the 4th Judicial DA’s office (I was still in high school at the time this case was argued).
People v. Moreno (Colorado Supreme Court 2022)
Moreno sent repeated vulgar emails and Facebook messages to his ex-wife. He was charged under Colorado’s electronic harassment law.
The Colorado Supreme Court ruled that part of the law was unconstitutional because it allowed prosecution of online speech intended to annoy or harass, even when the speech was not threatening or obscene.
The court removed the phrase “harass or” from the statute. Today, electronic harassment in Colorado requires threats or obscene content, not merely unpleasant messages.
Counterman v. Colorado (United States Supreme Court 2023)
This case involved Colorado’s stalking statute rather than harassment, but it directly affects how courts analyze threats. The Supreme Court held that prosecutors must show a defendant acted at least recklessly regarding whether their statements would be perceived as threats.
Although Colorado’s harassment law already requires intent for threat-based subsections, this decision reinforces that courts must take a close look at a speaker’s mental state when evaluating threatening speech.
Defenses That Have Succeeded in Harassment Cases
The best defense in harassment cases involving speech is typically the First Amendment. In physical cases, the defenses are a little different.
Many defenses that appear frequently in harassment cases come directly from appellate decisions. Here are a few of the most common and effective defenses.
1. Protected Speech
If a harassment charge is based on words, gestures, posts, or messages, the first question is whether the speech is protected. Courts have repeatedly held that offensive, vulgar, or upsetting language is not enough for a conviction unless it contains threats, legal obscenity, or fighting words.
Many harassment charges are dismissed once the content of the speech is reviewed. True threats and fighting words matter. Many things fall under the protected speech blanket of the First Amendment.
The First Amendment is very broad and protects many types of speech. In recent years, some countries have taken the approach of criminalizing speech (including online comments) that they find disagreeable or offensive.
In my opinion, one of the things that makes our country great is the broad protections provided by the First Amendment to allow for discourse, and even unpopular opinions, to be shared without fear of prosecution.
2. No Intent to Harass
The prosecution must prove that you acted with the purpose of harassing, annoying, or alarming the other person. If you had a legitimate purpose, such as trying to resolve a dispute, co-parent, request payment, or address an emergency, intent may not be present. Intent is the keyword here.
Were you trying to harass, annoy, alarm or intimidate the other person?
3. Legitimate Reason for the Communication
Repeated communications that serve a reasonable purpose, even if unwelcome, do not qualify as harassment. Courts have recognized that people sometimes must send messages that the recipient does not enjoy, but that still serve a lawful purpose.
Where do multiple calls cross the line? In many situations, that could be a question for a jury to decide.
4. Insufficient Evidence of Who Committed the Acts
This is the oldest defense in the book. The classic “it wasn’t me” defense as immortalized by the artist Shaggy in the song with the same title. (“But she caught me on the counter…It wasn’t me”).
In cases involving anonymous calls, unknown senders, or unclear identity, the defense may argue that the prosecution cannot prove the defendant was the person responsible. This defense is especially common in online cases. This is one of the most common defenses in criminal cases.
The “it wasn’t me” defense, or “you got the wrong guy” defense are quite common, and can be very effective without computer forensic evidence, like an IP address tying a person to the case.
5. Words Were Not Threats or Fighting Words
Threat-based harassment requires a true threat. Coarse-language harassment requires fighting words or obscene language (referring to actual sex acts, not just saying curse words).
If the alleged conduct does not meet these narrow definitions, the charge shouldn’t stick. I wrote a blog recently about fighting words and the Counterman case.
6. Self-Defense in Physical Harassment
If a harassment allegation stems from touching or pushing someone, you may assert self-defense or defense of others. Some judges have found that self-defense is not a defense to harassment, as the intent doesn’t line up with the allegations. Harassment requires intent to harass, not intent to protect yourself.
So this defense can get a little tricky because if you are defending yourself, of course the mental state (mens rea) of harassing would not be present.
Harassment in Colorado: What This Means for Anyone Facing Harassment Charges
Harassment cases are quite common in Colorado, but they’re also serious. They can be a stain on your record and send you to jail. Especially when cases involve domestic relationships or conduct that affects someone’s safety, courts have placed strong boundaries around what the government can criminalize.
Many harassment allegations fall in the gray area between free speech and abusive criminal behavior. That is why context, intent, and the content of any communication matter.
There is a reason that the Founding Fathers put freedom of speech in the very first amendment. The 1st Amendment’s protections are very strong, but certain words can cross the line into criminal behavior, like fighting words.
If you are dealing with a harassment investigation or charge, the specific facts will determine the strength of both the prosecution’s case and your defense. If you’re looking for a Colorado Springs attorney who handles harassment cases, give us a call to discuss your case.
Did your conduct meet the narrow legal definitions created by statute and shaped by the appellate courts, or was it protected by the First Amendment?
Section 18-9-111 Harassment
Kiana Arellano’s Law
(1) A person commits harassment if, with intent to harass, annoy, or alarm another person, he or she:
(a) Strikes, shoves, kicks, or otherwise touches a person or subjects him to physical contact; or
(b) In a public place directs obscene language or makes an obscene gesture to or at another person; or
(c) Follows a person in or about a public place; or
(d) Repealed.
(e) Directly or indirectly initiates communication with a person or directs language toward another person, anonymously or otherwise, by telephone, telephone network, data network, text message, instant message, computer, computer network, computer system, or other interactive electronic medium in a manner intended to harass or threaten bodily injury or property damage, or makes any comment, request, suggestion, or proposal by telephone, computer, computer network, computer system, or other interactive electronic medium that is obscene; or
(f) Makes a telephone call or causes a telephone to ring repeatedly, whether or not a conversation ensues, with no purpose of legitimate conversation; or
(g) Makes repeated communications at inconvenient hours that invade the privacy of another and interfere in the use and enjoyment of another’s home or private residence or other private property; or
(h) Repeatedly insults, taunts, challenges, or makes communications in offensively coarse language to, another in a manner likely to provoke a violent or disorderly response.
(1.5) As used in this section, unless the context otherwise requires, “obscene” means a patently offensive description of ultimate sexual acts or solicitation to commit ultimate sexual acts, whether or not said ultimate sexual acts are normal or perverted, actual or simulated, including masturbation, cunnilingus, fellatio, anilingus, or excretory functions.
(2) Intentionally left blank —Ed.
(a) A person who violates subsection (1)(a) or (1)(c) of this section or violates any provision of subsection (1) of this section with the intent to intimidate or harass another person, in whole or in part, because of that person’s actual or perceived race; color; religion; ancestry; national origin; physical or mental disability, as defined in section 18-9-121 (5)(a); or sexual orientation, as defined in section 18-9-121 (5)(b), commits a class 1 misdemeanor.
(b) A person who violates subsection (1)(e), (1)(f), (1)(g), or (1)(h) of this section commits a class 2 misdemeanor.
(c) A person who violates subsection (1)(b) of this section commits a petty offense.
(3) Any act prohibited by paragraph (e) of subsection (1) of this section may be deemed to have occurred or to have been committed at the place at which the telephone call, electronic mail, or other electronic communication was either made or received.
(4) to (6) Repealed.
(7) Paragraph (e) of subsection (1) of this section shall be known and may be cited as “Kiana Arellano’s Law”.
(8) This section is not intended to infringe upon any right guaranteed to any person by the first amendment to the United States constitution or to prevent the expression of any religious, political, or philosophical views.
