California “Sodomy” Laws – Penal Code 286 PC

In California, sodomy is charged under penal code 286 pc making it a the crime if there is the slightest penetration between the penis and the anus of another.[1] Depending on the circumstances, the crime can be charged as either a felony or misdemeanor. It carries substantial punishment where someone could face incarceration and have to publicly register as a sex offender. The type of sodomy charge and the punishment are ordinarily contingent upon the differences of age with the alleged victim.

If any accusations of sodomy are brought to your attention, it is important to seek the retention of counsel to defend yourself at the earliest time. An experienced Orange County sex crimes attorney could legally deflect the government’s case by producing exculpatory evidence or ensure you do not provide an incriminating admission to police. Contact us today to schedule a free consultation if you are standing accused of sodomy.

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Types of PC 286 Charges & Offense Elements

Sodomy of Minor Under 18 – Penal Code 286(b)(1)

Penal code 286(b)(1) pc[2] is characterized as a wobbler – allowing the prosecutor discretion to charge you with either a felony or misdemeanor. Ordinarily, your prior criminal history is a dispositive factor when the prosecutor determines your appropriate charge level. The crime occurs when someone participates in the act of sodomy with the alleged victim being under the age of 18. Sodomy with a minor under 18 is punishable in the county jail for not more than one year, or in the state prison for 16 months, 2, or 3 years.

Sodomy with Minor Under 14 – Penal Code 286(c)

Under penal code 286(c)(1) pc,[3] a person must participate in the act of sodomy when the alleged victim is under the age of 14. To prove this offense, the prosecution must show:

  1. Defendant participated in the act of sodomy with another person;
  2. The person was under the age of 14, and at least, 10 years younger than the defendant.

It is not a defense if you reasonably believed your accuser was over the age of 14. The consequences for a conviction carry a state prison sentence range of 3, 6, or 8 years.

Sodomy with Force or Fear – Penal Code 286(c)(2)

Under penal code 286(c)(2) pc,[4] a person who participates in the act of sodomy that was accomplished by force or fear is punishable in the state prison for 9, 11, or 13 years. To prove this charge, the prosecution must prove the following:

  1. Defendant committed an act of sodomy with another;
  2. The other person did not consent to the act;
  3. Defendant accomplished the act by force, violence, duress, menace, or fear of immediate unlawful bodily injury to another person.

If the act was accomplished by fear if your accuser was reasonably afraid. Additionally, an act accomplished by force occurs if a person uses enough physical force to overcome the other’s person’s will.

Sodomy of Unconscious Person – Penal Code 286(f)

Under penal code 286(f) pc,[5] a person who participates in the act of sodomy with an alleged victim who is unconscious at the time of the act, and you knew the alleged victim was unconscious, will be punished in the state prison for 3, 6, or 8 years. The term “unconscious of the nature of the act” is statutorily defined as someone who is incapable of resisting to the act under the following circumstances:

  1. They were unconscious or asleep;
  2. They were not aware of cognizant that the act occurred;
  3. They were not aware because of an act of fraud;
  4. They believed the act was for a professional purpose.

Legal Defenses to Penal Code 286 Charges

  • Consent: Consent is an absolute defense if the alleged victim is over the age of 18. It requires that the purported victim freely and voluntarily agree and know of the nature of the act.
  • Identification: An accuser may have identified the wrong person who committed the act against them. These instances ordinarily occur at a party or event where your accuser was under the influence or poor lighting impacted their ability to identify the correct person. Furthermore, it’s important to highlight any cross-racial identification issues or examine how law enforcement conducted, for instance, a photograph lineup to determine any suggestiveness.
  • False Accusations: It far too common for children, or their parents, or a former relationship partner of yours to manipulate the criminal justice system and leverage it against you. Motivates to falsify charges may include revenge, financial, or former spouses attempting to gain full child custody in family court.
  • Credibility: Your accuser can have a history of falsifying charges or filing frivolous restraining order petitions that can be very beneficial to your case. A thorough defense investigation is required to reveal the background of your accuser by speaking with former relationship partners, substance abuse, mental instability, and interviewing others to determine their character trait in the community.

Contact Us to Schedule a Free Consultation

If you have been arrested, charged, or are under investigation for sodomy under PC 286, then contact the Law Offices of John D. Rogers to schedule a free consultation. Our office is comprised with experienced sex crime lawyers who often handle sex charges in southern California. We will advise you of your rights and mounting your defense against the government. Contact us today to make an appointment with an Orange County criminal defense attorney.

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Related Offenses

 

 

Legal References:

[1] Penal Code 286(a) defined (“Sodomy is sexual conduct consisting of contact between the penis of one person and the anus of another person.  Any sexual penetration, however slight, is sufficient to complete the crime of sodomy.”)

[2] (b)(1) Except as provided in Section 288 , any person who participates in an act of sodomy with another person who is under 18 years of age shall be punished by imprisonment in the state prison, or in a county jail for not more than one year.

(2) Except as provided in Section 288 , any person over 21 years of age who participates in an act of sodomy with another person who is under 16 years of age shall be guilty of a felony.

[3] (c)(1) Any person who participates in an act of sodomy with another person who is under 14 years of age and more than 10 years younger than he or she shall be punished by imprisonment in the state prison for three, six, or eight years.

[4] (2)(A) Any person who commits an act of sodomy when the act is accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for three, six, or eight years.

[5] (f) Any person who commits an act of sodomy, and the victim is at the time unconscious of the nature of the act and this is known to the person committing the act, shall be punished by imprisonment in the state prison for three, six, or eight years.  As used in this subdivision, “unconscious of the nature of the act” means incapable of resisting because the victim meets one of the following conditions:

(1) Was unconscious or asleep.

(2) Was not aware, knowing, perceiving, or cognizant that the act occurred.

(3) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraud in fact.

 

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