Consent is crucial anytime you engage in sexual intercourse with another person. Failing to obtain such consent or obtaining it through fraud or deceit could result in charges for various sex crimes, including forcible sexual penetration under Penal Code 289. These charges mean you are facing possible time in prison, not to mention the requirement to register as a sex offender. A conviction would also mean difficulty finding employment and housing. Get in touch with us at Los Angeles Criminal Attorney to help you fight the charges against you.

Legal Definition of Forcible Sexual Penetration

It is a crime in California to commit an act of sexual penetration against the victim’s will when using a foreign object. Forcible sexual penetration occurs when you penetrate the vagina or anus of someone else without their consent, using a foreign object and threats or force.

The elements of forcible penetration include:

  • You engaged in sexual penetration with another person
  • You achieved the penetration using a foreign object
  • You did not have the person’s consent
  • You committed the act using violence, the threat of violence, menace, or threats of present or future harm.
  • You commit the act for sexual gratification or sexual abuse

Under PC 289, the prosecution must prove the elements above to be true beyond a reasonable doubt. Let's break down each element of the offense to help you understand how the prosecution proves each element:

Sexual Penetration under PC 289 refers to any penetration of another person's genital or anal opening. Any slight penetration qualifies as sexual penetration. Sexual penetration could also occur when you cause the victim to penetrate your, a third person’s, or the victim’s genital or anal opening.

A foreign object refers to any instrument, substance, unknown object, or device other than a sexual organ. It could be other body parts, such as fingers or another object. Common objects used in forcible sexual penetration include bottles, broom handles, toes, dildos, and other sex toys.

The prosecution must also prove that you did not have the victim's consent. California law defines consent as freely and voluntarily agreeing to engage in sexual activity with another person. Sexual consent is only legal if the other person can do so. Some cases where a person may not have the ability to consent to sexual activity include:

  • Being too intoxicated
  • Being a minor
  • Being unconscious because they are either asleep or unaware of the nature of the act. (for instance, a masseuse inserts their finger into the anus or vagina of their victims for sexual gratification but tells clients that it's part of the massage.
  • Having a physical or mental disability that prevents the victim from understanding the true nature of an act or giving informed consent

If a person cannot issue consent, you must reasonably know that for the prosecution to prove your guilt.

To be convicted of forcible sexual penetration, the prosecution must prove that you committed the act for sexual gratification or abuse. In California law, penetration for sexual gratification implies that you intend to derive pleasure or arousal from the act – you don't have to have been gratified or aroused to be guilty.

Sexual abuse intends to humiliate, hurt, injure, or intimidate an alleged victim by penetrating their genital area or anus with a foreign object.

Finally, the prosecution must prove that you used threats, force, violence, menace, or coercion to commit the offense.

Force is applying physical force sufficient to overcome the victim's will. Duress refers to an implied threat of force, retribution, or harm that would cause a reasonable person to do something they could not have done otherwise.

Can Battery Be Charged as Sexual Penetration with a Foreign Object?

Sexual battery and forcible sexual penetration with a foreign object are two closely related offenses, except that in forcible sexual penetration, the prosecution must prove that you penetrated the genital or anal area of the alleged victim.

This definition is closely related to sexual battery, which involves touching the intimate parts of a person against their will, and for sexual arousal, gratification or abuse.

Suppose you touched the labia of the victim but did not penetrate the vaginal opening; you are still considered to have committed forcible sexual penetration.

The prosecution can choose to reduce the forcible sexual penetration offense to sexual battery, but you cannot be convicted for both offenses. Regardless, you’ll want to protect your rights by fighting these charges with the help of a qualified sex crimes defense attorney.

Legal Defenses

Forcible sexual penetration with a foreign object is a felony. Once convicted, you face up to 12 years in prison, depending on the circumstances of the alleged offense. In addition to incarceration, you face additional collateral consequences, such as the inability to secure good employment.

The best way to avoid or at least minimize the consequences of the offense is by fighting these charges with the applicable legal defenses. Some of the defenses to forcible sexual penetration with a foreign object are:

  1. The Victim Consented to the Act

One of the elements of forcible sexual penetration is that the alleged victim did not consent to the action. Therefore, if they knowingly and willfully consented to the sexual penetration, you are not guilty of the offense.

Knowingly and willfully means that the alleged victim had the mental capacity to understand the sexual activity, and they agreed to participate in it. In addition, the victim must not have withdrawn the consent. And if they did, you must have respected their decision.

You can also defend yourself by highlighting that you reasonably believed that the victim gave their consent. It is common for ambiguity to arise during consent conversations about particular sexual acts. If this happens to you and you are accused of an offense, you can highlight that you reasonably believed the victim consented.

Note: minors, even if they are in the right mental capacity and understand the action, cannot legally consent to sexual activity. Therefore, consent cannot be used as a defense in such a case.

  1. Mistaken Identity

Charges of forcible sexual penetration arising from mistaken identity could occur if:

  • The victim did not see the alleged perpetrator clearly
  • You have similarities to the alleged perpetrator
  • Police misconduct, especially during lineups

Where you are accused of committing a crime due to mistaken identity, your attorney will work with you to establish your alibi at the alleged time of the offense.

  1. False Accusations

Sex crimes often attract a high number of false accusations. Whether the accuser has malicious intent or is mistaking you for the offender, these false accusations can have long-lasting consequences.

It doesn’t help that most sex crimes easily get to she said/he said situations. However, you can work with a qualified attorney who knows how to engage the right discovery tactics to help them identify any possibility of false allegations in your case.

Sentencing and Penalties

It is a felony in California to sexually penetrate another person with a foreign object. When found guilty of the offense, you face the following penalties:

  • Three, six, or eight years in prison
  • Formal probation (only available if the alleged victim was a disabled person)
  • Up to $10,000 in fines

These are the basic penalties for the general offense of forcible sexual penetration. You might receive a different sentence if the victim was a minor. If you committed the offense against a victim who was 14 -17, you would face six, eight, or ten years in prison. If the victim was younger than 14, you would face eight, ten, or twelve years in prison.

Forcible sexual penetration with an object also comes with the requirement to register as a sex offender. The number of years you need to register depends on the offense you committed and the nature of the alleged victim (minor, an unconscious, intoxicated, or disabled person).

What Happens During a Sex Crime Investigation?

In most cases, investigations for a sex crime begin with a report of the offense. The victim or a caregiver may report the offense. The investigations often involve law enforcement officials speaking to you and asking questions about the alleged offense.

If you are questioned about the offense, it’s best to contact an attorney immediately to help you. During the investigation, avoid making incriminating comments, as these will be used as evidence against you.

The police will also talk to witnesses and the victim during the investigation. In some cases, they will get a medical evaluation of the victim to collect any evidence. During the investigation, keep in mind these critical dos and don'ts:

  • Do not contact the alleged victim of the offense
  • Do not contact any witnesses
  • Hire an attorney to represent you
  • Don’t make the mistake of thinking police officers are on your side

What Happens in the Case?

For many people, charges for sexual offenses leave them unaware of what they should do or what to expect. Knowing what to expect can help you prepare and have peace as you deal with the court process.

The process usually starts with the victim reporting an alleged offense. Once the police investigate it, they submit the report to the prosecuting agency. The prosecuting agency decides whether to file charges. If they are filed, you will be arrested and booked.

An arrest can also occur immediately if you are found committing the offense. When arrested, most people make the mistake of telling everything to the police in an attempt to defend themselves or hopefully prove their innocence.

However, once you’ve been arrested for a crime, the smart thing to do is to contact an attorney. Your attorney will guide you when you communicate with officers to prevent you from incriminating yourself.

You may think police officers will understand an accusation since you are innocent. But, their job is primarily to enforce the law – not determine guilt or innocence. That is the job of the courts and your attorney.

Requesting the presence of an attorney during questioning also prevents incidences such as forced confessions. Hiring an attorney also comes with the benefit of accessing the police report on which the charges are based.

In sex crimes, you, as the defendant, may not be allowed to access the police report to protect the victim and the witnesses, but your attorney can.

After the police report, the prosecution decides whether to file charges, what charges to file, and additional charges they may file alongside the main charge. Additional charges often depend on the circumstances of the offense.

Once the prosecution files charges (usually within 48 hours if you are in custody), the next step is the arraignment. Your first appearance in court involves the judge informing you about your charges, your rights, and the possibility of getting a public defender appointed if you cannot afford an attorney.

The arraignment is also when you plead "guilty," "not guilty," or "no contest" to the charges against you. If you are in custody, the judge also determines whether to release you on bail, your "own recognizance," or to keep you in custody until the next court date.

Since forcible sexual penetration is a felony, the next step involves a preliminary hearing before the judge. During the preliminary hearing, the judge decides whether there’s sufficient evidence to show that you committed the offense.

If the judge determines that the prosecution has sufficient evidence, the prosecution will file "the Information." Afterward, you will be arraigned for a second time based on the Information. You will enter a plea, and the case will proceed to the discovery phase.

During the discovery stage, the prosecution and defense exchange information. It's crucial to have an attorney defending you at this stage, as they can access more information than you would if you represented yourself.

The prosecution and defense may file pretrial motions based on the information exchanged during the discovery. You may also change your plea to “no contest” at this stage. The prosecution and defense may also resolve the case at this stage instead of proceeding to trial.

If your case is not resolved during the pretrial stage, it proceeds to trial. Before the trial, you have the right to choose whether to have a jury trial.

The trial for felony offenses must be held within 60 days of the arraignment (based on Information). The only exception is if you waive your right to a speedy trial.

Before the trial begins, the prosecution and defense choose the jury, ensuring that all the people selected will be impartial and fair.

The prosecution and the defense present their opening statements about the case, present evidence, examine witnesses and give their closing arguments.

Afterward, the jury decides whether you are guilty or not guilty based on the evidence presented. If you are found not guilty, you are acquitted and released. If you were found guilty, you will be sentenced.

During the sentencing stage for forcible sexual penetration, the court must follow California’s felony sentencing guidelines.

The guidelines provide instructions on how judges declare a sentence for an offense. For instance, should you be placed on probation or sent to prison? What are the mitigating factors? Do you pose any risk to public safety? Are there aggravating factors in the case?

The judge will consider these factors during the sentencing hearing. He or she will work with the defense and prosecuting attorneys to determine a fair sentence for the offense.

Note: being acquitted is not the same as being declared innocent. If you want to declare your innocence, you can file a petition for a certificate of factual innocence.

The petition asks a court to find that you did not commit the crime for which you were acquitted. This petition says that the arrest should not have occurred in the first place. To be successful, you must prove that there wasn’t a reasonable cause to believe you committed the alleged offense.

If successful, the court will order the arrest records for the offense to be sealed, and after three years, they should be destroyed.

Post-Conviction

If you are found guilty of forcible sexual penetration, your case will not end with a conviction. The criminal court process might have ended, but you still have additional steps you can take to challenge the conviction or request a new trial.

 One of the steps you could take is to appeal the conviction. Since this is a felony conviction, you have 60 days of the judgment to file a Notice of Appeal. The appeal requests the appellate court to review the evidence presented during the criminal trial to see whether the court made a legal error.

Such legal errors that could require an appeal include the following:

  • Insufficient evidence
  • The judicial, jury, or prosecutorial misconduct
  • Insufficient assistance by legal counsel

Instead of an appeal, you could file a motion for a new trial. You can request a new trial if you believe the first trial was marred with prosecutorial misconduct. If approved, you will repeat the criminal court process.

Another option available is a resentencing motion. A resentencing motion requests the court to modify, reduce or revoke your sentence. To file this motion, you must show good cause. Some of the reasons you may file a motion for resentencing include the following:

  • Clerical errors
  • Illegal sentencing
  • Judicial error in reviewing the evidence presented
  • Significant legal changes

Related Offenses

Forcible sexual penetration with a foreign object is one of the sex crimes in which the offender performs a sexual act on the victim without their consent. You can be charged for offenses or similar sex crimes arising from non-consensual sexual contact. These offenses include:

  1. Rape

Like forcible sexual penetration, rape involves non-consensual sexual penetration. But, the difference is that the object used in the penetration is a penis. Rape is a felony in California.

The penalties usually depend on the victim's age during the alleged offense. If the victim is 18 or older, you face three, six, or eight years in state prison. If the victim was at least 14 but younger than 18, you would face nine, eleven, or thirteen years in state prison.

Where the victim was younger than 14 years, you face seven, nine, or eleven years in prison and the requirement to register as a sex offender for life.

  1. Oral Copulation by Force of Fear – PC 287

Forced oral copulation is similar to forcible sexual penetration with one exception – instead of using a foreign object, the offender forces contact between one person’s mouth and the genitals or anus of another person.

Like other sex crimes, oral copulation by force or fear carries a significant stigma, and the penalties are also heavy. The offense is a felony carrying a prison sentence of three, six, or eight years. If the victim was a minor at the time of the alleged offense, the sentence becomes six, eight, or ten years in prison if they were at least 14. Where the victim was under 14 years, you face a prison sentence of eight, ten, or twelve years in prison.

A conviction for oral copulation by force means you must register as a sex offender for the rest of your life.

  1. Sexual Battery

Depending on the evidence the prosecution has to prove that you committed forcible sexual penetration, your case could be reduced to sexual battery. Sexual battery is a lesser offense. You could face penalties for a misdemeanor or felony sexual battery.

Misdemeanor sexual battery carries a sentence of up to six months, while a felony conviction carries a prison sentence of between two and four years.

Find a Sex Crimes Defense Attorney Near Me

Charges of sex crimes like forcible sexual penetration can be damaging. The consequences of these charges and a conviction can last a lifetime – long after the sentence provided for the offense. For many people, registering as a sex offender limits your ability to find work and even live in certain areas. Therefore, it's in your best interests to fight these charges in court with the help of a competent criminal attorney. You’ll get guidance on what the offense means and the best strategies that could work based on the circumstances of the offense. Get in touch with Los Angeles Criminal Attorney at 424-333-0943 if you are facing charges of forcible sexual penetration in Los Angeles.