California Penal Code 289: Sexual Penetration by Foreign Object with Force, Fear, or Threats

Legal Definition: Sexual penetration, means penetration, by you, of the genitals or anus of another person, or, to cause another person to penetrate the defendant’s genitals or anus, or, to cause another person to penetrate his or her own genitals or anus, for the purpose of sexual gratification, or sexual abuse (when the purpose is pain or injury).

For a person to be convicted of a violation of PC 289(a)(1)(A), the prosecution must prove the following:

1. You committed an act of sexual penetration with another person;
2. The penetration was accomplished by using a foreign object/substance/instrument/device/unknown object;
3. The other person did not consent to the act;
4. You accomplished the act; AND
5. You used force (PC 289(a)(2)), violence, duress, menace, or fear of immediate and unlawful bodily injury to another person.

What does this mean?

This actual penetration here does not need to be significant or for a long duration. Any penetration, even slight or brief, is sufficient for this charge. An act is accomplished by force if a person uses enough physical force to overcome the other person’s will. Duress means a direct/implied threat of force, violence, danger, hardship, or retribution that is enough to cause a reasonable person of ordinary sensitivity to do/submit to something that he or she would not otherwise do. Age is also a deciding factor for duress, whereas someone who is maybe younger or more inexperienced in life, is more likely will be found to have been under duress at the time of the act.

Menace means a threat, statement, or act showing an intent to injure someone. An act is accomplished by fear if the other person is actually and reasonably afraid/is actually but unreasonably afraid and you know of their fear and take advantage of it. In order for the alleged victim to consent, a person must act freely and voluntarily and know the nature of the act in order to legally consent. Also, you must actually accomplish the act in order to be charged with the crime.

Penalties

If you are convicted of a violation of PC 289(a)(1)(A), you could be sentenced to State Prison for upwards of 3, 6, or 8 years. For any conviction under this section, you would serve 85% of your actual sentence. You would be required to register as a Sex Offender for 20 years as a Tier II Offender. This is also considered a serious and violent felony under California Law, and you would also receive a Strike on your record under the Three Strikes Law.

Other relevant violations under this section

1. PC 289(a)(1)(B)

Legal Definition: In addition to the above offense, this offense requires penetration by an object, with force, on a victim who is under 14 years old at the commission of the offense.

Penalties: If you are convicted of a violation of PC 289(a)(1)(B), you could be sentenced to State Prison for upwards of 8, 10, or 12 years where you must serve 85% of that sentence in a State Prison, not a local county jail. You would also be required to register as a Sex Offender for 30 years as a Tier III offender. This is also considered a serious and violent felony under California Law, and you would also receive a Strike on your record under the Three Strikes Law.

2. PC 289(a)(1)(C)

Legal Definition: In addition to the above offense, this offense requires penetration by an object, with force, on a victim who is 14-17 years old at the commission of the offense.

Penalties: If you are convicted of a violation of PC 289(a)(1)(C), you could be sentenced to State Prison for upwards of 6, 8, or 10 years where you must serve 85% of that sentence in a State Prison, not a local county jail. You would also be required to register as a Sex Offender for 30 years as a Tier III offender. This is also considered a serious and violent felony under California Law, and you would also receive a Strike on your record under the Three Strikes Law.

3. PC 289(b)/PC 289(d)/PC 289(e)/PC 289(g)

Legal Definition: In addition to the above offense, if the victim is incompetent (PC 289(b)), if the victim is unconscious (PC 289(d)), if the victim is intoxicated (PC 289(e)), or if you are, or you make the victim believe, you are a public official with the ability to incarcerate, deport or arrest the victim, or another (PC 289(g)), you could be sentenced to 8 years in State Prison.

Penalties: If you are convicted of a violation of any of the offenses in this section, you could be sentenced to State Prison for upwards of 3, 6, or 8 years where you must serve 85% of that sentence in a State Prison, not a local county jail. You would also be required to register as a Sex Offender for 20 years as a Tier II offender. This is also considered a serious and violent felony under California Law, and you would also receive a Strike on your record under the Three Strikes Law.

4. PC 289(h)

Legal Definition: Any other act of sexual penetration, where the victim is under the age of 18 years old, and you did not use any use of force above, you could be sentenced anywhere from probation, up to State Prison.

Penalties: If you are convicted of a violation of PC 289(h), u could face anywhere up to one year in county jail (if convicted of a misdemeanor violation of this) or anywhere from sixteen months, to two or three years in state prison. For any conviction under this section, you would serve 50% of your actual sentence. You would be required to register as a Sex Offender for 10 years as a Tier 1 Offender. This is one of the rare offenses under PC 289(h) where the crime is considered a “wobbler” offense. A wobbler offense is one that, based on certain mitigating or aggravating facts, can be charged as a misdemeanor offense, or a felony offense.

Common Defenses

1. Statute of Limitations
2. Insufficient Evidence
3. Reasonable Belief as to Consent
4. Violation of your Rights
5. False Accusations
6. Coerced Confessions

Consent is a very tricky defense, you must be reasonable in your belief that the other person was consenting to the conduct before engaging in it. If the other party is asleep, or too drunk to resist, you cannot reasonably believe that they are consenting to any act. If they are screaming, crying, or trying to push you away, that is also a sign that you are not receiving valid consent. Consent can also be withdrawn during the act itself, so as soon as you are told “no” or to “stop”, you must stop the act. Also, if she gave you consent earlier, and is now asleep, that consent will not carry over. These are just some examples of how consent cannot be used as a defense against the crime. Consent must be unequivocal and known by a reasonable personal standard.

Call Today

Violations of law under PC 289 are very serious, and can drastically change depending on whether or not there is any force used. Regardless, the charge requires Sex Registration and a possible lengthy jail sentence. However, as stated above, there are numerous valid defenses to these charges, and Attorney Jackson has been successful in defending these charges for years. I have helped hundreds of people accused of sex crimes throughout Southern California, and I will help you or your loved one too. Our PC 289 Ontario attorney has successfully defended numerous cases and personally specializes in all Sex Crimes including PC 289. The initial consultation is free and we are available to answer your questions 24/7. Call the Inland Empire Criminal Defense today at 909-939-7126! Located in Ontario, CA.