A Boulder County judge was wrong to permit an alleged victim of sex assault and three of her friends or coworkers to testify about how she changed after the disputed rape, Colorado’s second-highest court ruled last month in reversing the defendant’s convictions.

By 2-1, a three-judge panel for the Court of Appeals concluded the victim’s change in demeanor after Edgar Ramirez-Martinez allegedly assaulted her was not clearly relevant to the contested issue at trial: whether the victim, identified as B.M., consented to have sex.

“The evidence here showed the victim’s demeanor at undetermined points in time after the alleged sexual assault,” wrote Judge Ted C. Tow III in the May 25 opinion. “It did not make the existence of B.M.’s consent, or lack thereof, at the time of the alleged sexual assault any more or less probable.”

Judge Timothy J. Schutz disagreed with that logic, arguing courts in other states have held that a victim’s behavioral changes are relevant to analyzing consent as “psychological scars” of an uninvited injury. He also criticized the majority’s suggestion that B.M.’s change in demeanor could simply mean she regretted a consensual sexual encounter.

“I do not agree that the psychological reaction, and associated behavioral and personality changes, of someone who has been sexually assaulted through an act committed without their consent is equivalent to the psychological harm that a person might feel for engaging in consensual sexual behavior that they later regret,” he wrote.

Case: People v. Ramirez-Martinez

Decided: May 25, 2023

Jurisdiction: Boulder County

Ruling: 2-1

Judges: Ted C. Tow III (author)

Anthony J. Navarro

Timothy J. Schutz (dissent)

Background: People v. Martinez (2020)

The evidence at Ramirez-Martinez’s 2019 trial showed B.M. was among the people who attended a work-related going-away party for Ramirez-Martinez. They went to a restaurant, where B.M. drank alcohol and became sick to the point of vomiting and passing out. She and Ramirez-Martinez went to the group’s vehicle. When the others joined them, they saw Ramirez-Martinez having sex with her. B.M. was crying.

“I wasn’t doing anything wrong. She wanted it. She wanted it,” Ramirez-Martinez said when confronted.

Prosecutors charged him with sexual assault on a victim who was physically helpless and sexual assault on a victim who was incapable of gauging the nature of her conduct. Ramirez-Martinez’s defense was that B.M. actually had consented, but did not remember doing so.

At trial, the prosecution asked several witnesses about how the encounter affected the victim. B.M. said Ramirez-Martinez “took something from me that made me feel different about myself.” Friends and coworkers said B.M. used to be “fun, happy.” Now, she was “quiet,” “cried a lot” and “has a lot of anxiety attacks.”

The defense attempted to block the testimony, contending B.M.’s reaction was not relevant to whether she provided consent. Then-District Court Judge Judith L. LaBuda disagreed and allowed the commentary. Jurors convicted Ramirez-Martinez and he received a sentence of six years to life in prison.

On appeal, Ramirez-Martinez argued there was no question B.M. felt bad afterward. Instead, the testimony possibly resulted in jurors convicting him based on sympathy for the victim, rather than evidence about consent.

The Court of Appeals based its decision on a prior case from 2020, People v. Martinez, which established that victim impact evidence is irrelevant when the victim’s reaction to a sex assault does not help prove or disprove the consensual nature of the encounter. Two of the judges in that case, Tow and Anthony J. Navarro, ended up on the panel that heard Ramirez-Martinez’s appeal.

Tow, writing for himself and Navarro, again found the descriptions of the victim’s change in demeanor did not make it any more or less likely that she had consented to sex.

“We do not equate the psychological impact of regretting sexual activity with that of being sexually assaulted,” Tow wrote. “We simply observe that the mere existence of B.M.’s behavior change does not alone explain which of these reactions (she) was experiencing.”

Schutz pointed out in dissent that, even if jurors believed Ramirez-Martinez, he still had sex with a black-out drunk woman, making it reasonable to assume the victim could not consent. Schutz acknowledged that in some cases, prosecutors could go too far in soliciting extensive testimony about a victim’s “emotional upheaval” that would improperly sway a jury.

“But these issues are best managed on a case-by-case basis,” he wrote, “rather than through a broad suggestion that changes in a victim’s personality or behavior are not relevant in the first instance.”

The court ordered a new trial.

The case is People v. Ramirez-Martinez.