CA “Sexual Penetration with Foreign Object” Laws – Penal Code 289 PC

In California, penetrating another with a foreign object is a serious sex crime charged under penal code 289 pc. A person can be charged by any of the following circumstances:

  • Penetration with a Minor without Force/Fear
  • Penetration with a Minor Under 16 and Defendant is Over 21
  • Force or Fear
  • Force or Fear with a Minor Under 14
  • Force or Fear with a Minor Over 14
  • Threat of Retaliation
  • Mental or Physical Disability
  • Unconscious Victim
  • Intoxication
  • Color of Law

Generally, the prosecution must prove the following elements beyond a reasonable doubt:

  1. You committed an act of sexual penetration with another person;
  2. The penetration was accomplished by using some object;
  3. The other person did not consent to the act or was incapable of consenting.[1]

What is Considered Penetration with a Foreign Object?

Sexual penetration is statutorily defined to be the act of causing penetration, however slight, of the genital or anal opening.[2] A foreign object can virtually mean any object other than a sexual organ. For example, any substance, instrument, device, or finger. There is no requirement that penetration be substantial. Even the slightest penetration will suffice. Moreover, the statute does not require, for instance, vaginal penetration. Instead, penetration of the external genital organ is sufficient to constitute sexual penetration.[3]

Legal Defenses for Penal Code 289

  • False Accusation: It is far too common for someone to be falsely accused of sexual penetration.[4] A simple accusation will require mandatory reporting requirements for social workers or teachers. However, it is not uncommon for someone, or even a child’s parent, to manipulate the system and use it against an accused. There are endless motivations for false accusations including financial gain, or a former spouse influences the child to claim a sexual offense in an effort to gain full custody in family law court.
  • Insufficient Evidence: Your accuser may have credibility issues that severely call into question the circumstances. For example, they may have a character trait for habitually lying or a history of fraud. Additionally, there may be instances where your accuser’s version is physically impossible or substantially improbable.
  • Reasonable Belief in Consent: You are not guilty of sexual penetration under PC 289 if you actually and reasonably believed that your accuser willingly participated in the act. However, there are limitations to this defense such as when your accuser is a minor, mentally disabled, intoxicated where they are incapable of consenting, or your accuser was unconscious.
  • False Memory: Ordinarily, sex charges are reported to law enforcement long after the purported incident took place. Consequently, due to the passage of time, a person’s memory may have been compromised by outside influences. Moreover, experts tend to agree that a simple touch could morph into what someone may believe to be a sexual act years later.

Punishment & Sentencing

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Penetration of Minor without Force/Fear: If the act of penetration occurs with another who is under the age of 18, but over the age of 14, and it is not accomplished with force, fear, duress, or menace, then it is a wobbler making it punishable as either a felony or misdemeanor. A felony conviction carries a sentence of 16 months, 2, or 3 years in state prison. A misdemeanor carries a sentence of up to 1 year in county jail.[5]

Penetration Age Difference: If you are over 21 years old and participate in the act of sexual penetration with a minor who is under 16 years old, and the act does not involve force or fear, then it is punishable in the state prison for 16 months, 2, or 3 years.

Force/Fear: If you are convicted of penetrating someone over the age of 18 where the act is accomplished with the use of force or fear, then it is punishable in the state prison for three (3), six (6), or eight (8) years.[6]

Force/Fear Under 14: If the act of sexual penetration was accomplished by the use of force or fear and your accuser is under the age of 14, then it carries a prison sentence of 8, 10, or 12 years.[7]

Force/Fear 14 or Over: If the act of penetration occurred with a minor who is 14 years old or older and the act was accomplished with force or fear, then it carries a state prison sentence of 6, 8, or 10 years.[8]

Threatening to Retaliate: The act of penetration that is accomplished against your accuser’s will by threatening to retaliate in the future against them (or any other person), and there is a reasonable possibility that you will execute that threat, then it is punishable in the state prison for 3, 6, or 8 years.[9] “Threatening to retaliate” means a threat to kidnap, falsely imprison, or inflict extreme pain, serious bodily injury, or death.

Mental Disorder/Physical Disability: If your accuser at the time of the act is incapable of giving consent because of a mental disorder or developmental or physical disability, then the act is punishable in the state prison for 3, 6, or 8 years.[10]

Unconscious: When a purported victim is unconscious and unable to know of the nature of the act, then it is punishable in the state prison for 3, 6, or 8 years. The victim’s state of mind must be that they are incapable of resisting by meeting one of the following conditions:

  1. Unconscious or asleep;
  2. Not aware, knowing, perceiving, or cognizant that the act occurred;
  3. Not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraud;
  4. Not aware or cognizant due to your fraudulent representation that the sexual penetration served a professional purpose (when it actually served no professional purpose).[11]

Intoxication: If sexual penetration occurs when the victim is prevented from resisting due to an intoxicant or anesthetic substance, then it is punishable in the state prison for 3, 6, or 8 years.[12]

Color of Law: If the act of sexual penetration was accomplished against the victim’s will by the use of authority from a public official to arrest, incarcerate, or deport, and the victim reasonably believed you’re are a public official, then it carries a state prison sentence of 3, 6, or 8 years.[13] A public official can be anyone employed by a government agency who has the power to incarcerate, arrest, or deport someone. However, the perpetrator need not actually be a public official. Common examples include:

  • Police officer
  • Sheriff deputy
  • Federal agent
  • ICE agent
  • Border Patrol
  • Prosecutor

Examples of Foreign Object Penetration under PC 289

  • Dan is a police officer who recently began a dating relationship with Beth. Beth resisted Dan’s attempt to penetrate her vagina with his finger after an evening out to dinner. Dan responded that he would call his fellow officers and have Beth arrested for making a criminal threat against him unless she submitted to the penetration. Beth reluctantly complied under the fear that Dan would follow through with his threat. Thereafter, Dan penetrated Beth’s vagina with his finger. In this case, Dan would be charged with forcible sexual penetration with a foreign object under the color of law since he used his status as a law enforcement officer to instill fear in Beth to submit to penetration.
  • Chris and his girlfriend were intoxicated after consuming several drinks. Both became intimate where it was agreed that Chris would penetrate his girlfriend’s vagina with a sex toy. Moments later, his girlfriend passes out due to her level of intoxication. Because Chris’ girlfriend had initially agreed upon Chris penetrating her with a sex toy, Chris acted on their agreement and penetrated his girlfriend’s vagina with the sex toy. Here, Chris would likely be charged with unlawful sexual penetration with a foreign object by intoxication. Despite his girlfriend initially consenting to the act, she nonetheless passed out and was incapable of resisting.
  • Paul is 22 years old and in an intimate relationship with his 15 year old girlfriend. While intimate, his girlfriend requested that Paul penetrate her anus with his finger. Paul complied with her request and penetrated her. In this case, although Paul’s girlfriend was a willing participant in the act, she nonetheless cannot legally give consent since she is under the age of 18. Accordingly, Paul would be charged with felony sexual penetration with a foreign object in light of the age difference.

Related Charges

Contact Us to Schedule a Free Consultation

If you have been charged or are under investigation for PC 289, then it is crucial you retain an experienced Orange County criminal defense attorney who frequently handles sex charges. Our office serves those facing serious criminal charges in all courts located in Orange County, Los Angeles, Riverside, San Bernardino, and the surrounding region.

Sex crime allegation are usually urgent situations that require swift legal intervention. Providing evidence to law enforcement can be damaging to your defense. We are here to help those in life-altering situations where the stakes are high. Contact us today to schedule free confidential case analysis.

 

 

 

Legal Footnotes

[1] See CALCRIM Nos. 1045, 1048, 10,49, 1100, 1102.

[2] Penal Code 289(k)(1) defines sexual penetration as “…the act of causing the penetration, however slight, of the genital or anal opening of any person or causing another person to so penetrate the defendant’s or another person’s genital or anal opening for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object.”

[3] See People v. Karsai (1982) 131 Cal.App.3d 224 holding that “[p]enetration of the external genital organs is sufficient to constitute sexual penetration and to complete the crime of rape even if the rapist does not thereafter succeed in penetrating into the vagina.”

[4] Alarmingly, rape allegations made to police or campus authority are proven false approximately 2% to 10% of the time. See: Lisak, David; Gardinier, Lori; Nicksa, Sarah C.; Cote, Ashley M. (2010). “False Allegations of Sexual Assualt [sic]: An Analysis of Ten Years of Reported Cases” (PDF). Violence Against Women. 16 (12): 1318–1334. doi:10.1177/1077801210387747. PMID 21164210. This study, however, only provides what was “proven” to be false.

[5] Penal Code 289(h) – (“Except as provided in Section 288, any person who participates in an act of sexual penetration 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 a period of not more than one year.”)

[6] Penal Code 289(a)(1)(A) – (“Any person who commits an act of sexual penetration 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.”)

[7] Penal Code 289(a)(1)(B) – (“Any person who commits an act of sexual penetration upon a child who is under 14 years of age, 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 8, 10, or 12 years.”)

[8] Penal Code 289(a)(1)(C) – (“Any person who commits an act of sexual penetration upon a minor who is 14 years of age or older, 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 6, 8, or 10 years.”)

[9] Penal Code 289(a)(1)(D)(2) – (“Any person who commits an act of sexual penetration when the act is accomplished against the victim’s will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat, shall be punished by imprisonment in the state prison for three, six, or eight years.”)

[10] Penal Code 289(b) – (“Except as provided in subdivision (c), any person who commits an act of sexual penetration, and the victim is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act or causing the act to be committed, shall be punished by imprisonment in the state prison for three, six, or eight years. Notwithstanding the appointment of a conservator with respect to the victim pursuant to the provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving legal consent.”)

[11] Penal Code 289(d) – (“Any person who commits an act of sexual penetration, and the victim is at the time unconscious of the nature of the act and this is known to the person committing the act or causing the act to be committed, 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.

(4) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose.”)

[12] Penal Code 289(e) – (“Any person who commits an act of sexual penetration when the victim is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused, shall be punished by imprisonment in the state prison for a period of three, six, or eight years.”)

[13] Penal Code 289(g) – (“Any person who commits an act of sexual penetration when the act is accomplished against the victim’s will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official, shall be punished by imprisonment in the state prison for a period of three, six, or eight years. As used in this subdivision, “public official” means a person employed by a governmental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to be a public official.”)

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