Forcible Sexual Penetration Penal Code 289

What is Penal Code 289 PC?

California’s Penal Code 289 PC prohibits forcible sexual penetration of another person.  The relevant legal issues pertinent to a Penal Code section 289 PC charge depend on the particular section of the law with which you are charged.

Forcible Sexual Penetration by Force or Fear

In order to convict you of Penal Code section 289 PC, the prosecutor must prove all the elements of the law.  In other words, the prosecutor needs to prove certain facts beyond a reasonable doubt.  These “facts” or elements of the law are the following:

  • You committed an act of sexual penetration on another person;
  • The penetration was committed using a foreign object or substance;
  • The victim did not consent to the penetration; and
  • The penetration was committed through the use of force, duress, or fear of present or future bodily harm.

To prove you guilty of a violation of Penal Code section 289 PC, the prosecutor must prove beyond a reasonable doubt each and every of the above “facts” or elements of the crime.

Let’s examine these elements of the crime more closely.

Sexual Penetration

In California, “sexual penetration” is broadly defined.  Penetration under Penal Code section 289 involves opening, however slight, of either a genital or anal orifice.  Penal Code section 289 also penalizes forcing the victim penetrate a genital or anal orifice of the defendant, another individual, or the victim himself/herself.  It is important to note that Penal Code section 289 penalizes sexual penetration done with the purpose of sexual abuse, arousal, or gratification.

For example, Ed lives with his wife and 7-year-old granddaughter, Hanna.   One evening, Hanna comes home from summer camp and tells Ed that she feels that an insect has penetrated her vagina.  Concerned, Ed wraps his index finger with hygienic cloth and slightly penetrates Hanna’s vagina to clean it of any foreign substances. Though the penetration was slight, it was still sufficient for purposes of Penal Code section 289 PC.  However, the penetration was not done for purpose of sexual abuse, arousal, or gratification.  Therefore, in this scenario, Ed is not guilty of Penal Code section 289 PC.

Now consider the following scenario: Justina goes to a masseuse for a massage.  During the massage of her back and legs, the masseuse slowly moves his hands towards Justina’s vagina and penetrates her vagina with his index finger.  In this scenario, if the masseuse is charged with a violation of Penal Code section 289 PC, the prosecutor will argue that the masseuse’s digital penetration of Justina’s vagina was not related to the procedures and functions of the massage and, as such, as done for the sole purpose of the masseuse’s sexual arousal or gratification.

Foreign Object

Under Penal Code 289 PC, “foreign object” applies to almost anything, including human body parts.  However, it does not apply to sex organs.  This is because penetration with a sex organ is considered sexual intercourse and is therefore covered under California’s rape laws.

In the example above, the masseuse’s finger is considered a foreign object.

Lack of Consent

Penal Code 289 PC only applies to sexual penetration that was conducted without consent.  For this reason, Penal Code 289 PC cases often center on the issue of whether or not there was consent.  And a court will determine whether or not consent was given based on the overall surrounding facts of the case.  The fact that you and the alleged victim were dating or married won’t necessarily mean the court will assume there was consent. For example, Ed and Justina have been married for a decade.  Recently, the couple has faced some difficulties in the marriage.  One night, after an argument, Ed wishes to have make up sex with Justina.  Justina refuses the sexual advance, but Ed slips his finger into Justina’s underwear and penetrates her.  Justina calls the police.  Ed gets charged with a violation of Penal Code section 289 PC.   In this scenario, the fact that Justina and Ed had been married for a decade did not give Ed the right to digitally penetrate Justina without her consent.  Therefore, if the prosecutor can prove beyond a reasonable doubt that Ed penetrated Justina without her consent, Ed can be convicted of a violation of Penal Code section 289 PC.

Forcible Penetration

In order to prove you guilty of of Penal Code 289 PC, the prosecutor must also prove that you committed the relevant acts using forcible penetration.  Forcible penetration can be committed through the following methods:

  • Force – using physical force to overpower the other person’s will
  • Duress – through the threat of force. The threat of force can be direct or implied such that a reasonable person would be caused to do something that they otherwise would not do.
  • The threat of immediate and unlawful bodily injury or death.
  • A threat to retaliate if the victim does not conform to your demands—for example, threatening to kidnap the victim if they don’t follow your instructions to act in a certain manner.

Forcible Penetration in the case of an incapacitated victim

However, if the alleged victim is mentally handicapped, forcible penetration under Penal Code 289 PC can be committed even without the use force, duress, or threats. This is because a mentally incapacitated victim cannot understand the nature of the acts they are being lead to commit on themselves or others.  Hence, they would be incapable of giving consent in the legal sense. 

A legislative intent behind Penal Code section 289 PC is to protect the vulnerable.  Therefore, Penal Code 289 PC also protect victims who, during the sexual act, are unconscious, asleep, and confused, or who otherwise cannot give legal consent.

The protection afforded to the mentally incapacitated under Penal Code section 289 PC does not mean that you are automatically guilty of a violation of Penal Code section 289 PC if you committed a sexual act with a mentally disabled person. The facto finder will examine whether you knew or reasonably should have known of the alleged victim’s lack of ability to give consent.  If the fact finder determines that you did not know or reasonably could not have known of the victim’s mental incapacity, then you cannot be convicted of a violation of Penal Code section 289 PC.

For example, Ed meets Justina at a bar.  Justina appears to Ed as very mature, sexually advanced, confident, and fun.  Justina lures Ed into her the bathroom, where Ed digitally penetrates her.  Unbeknownst to Ed, Justina suffers from schizophrenia and severe manic depression.  Later, Justina claims that Ed forcibly penetrated her.  Ed’s attorneys successfully argue before a jury that Ed had no way of knowing about Justina’s mental illnesses and, even if he did, those mental illnesses did not mean that Justina did not have the mental capacity to consent.

What are the penalties for a Penal Code 289 PC violation?

In California, a Penal Code 289 PC violation is classified as a felony.  If convicted of Penal Cod 289 PC, the potential penalties include formal probation, up to 8 years in California state prison, and/or up to a fine of $10,000.

If the victim is a minor at the time of the offense, the potential penalties significantly increase.  You could receive up to ten years in prison if the victim was older than 14 and up to twelve years in prison if the victim was under the age of 14.

Sex Offender Registration

In addition to probation, fines, and prison time, California subjects Penal Code 289 PC violators to sex offender registration.  California follows a three-tier system of sex offender registry, which varies depending on the severity of the act that constituted the Penal Code 289 PC violation. 

Low tier offenders will be required to register for at least 10 years.  Second tier offenders will be required to register for 20 years and third tier offenders are required to register for their entire lives.

You will be given tier two sex offender registration if your Penal Code 289 PC violation was committed against the victim through the use of threat of retaliation or if the victim was unable to given consent because they had a developmental, mental, or physical disability/disorder.

Tier three sex offender registration applies if your Penal Code section 289 PC violation was committed through the use of force or duress or if the victim was under the age of 14 (and more than 10 years younger than the defendant), or if the victim was too intoxicated or unconscious to consent.

California’s Sex Offender Registration Act requires any sex offender in the state to register with local police every year and every time they move.  Failure to do so may result in additional penalties.

What are the legal defenses to a Penal Code 289 PC allegation?

There are a variety of legal defenses available to fight a Penal Code 289 PC accusation.  An experienced and diligent criminal defense attorney can review the specific circumstances of your case to determine the most effective legal strategy.  Some legal defenses that may utilized to fight a Penal Code 289 PC accusation include:

  • There was consent: In order to be convicted of a Penal Code 289 PC violation, the prosecutor must prove that the act of sexual penetration occurred without the alleged victim’s consent. These types of cases often turn into “he said/she said” type situations.  Hence, a lack of consent might be very difficult for a prosecutor to prove beyond a reasonable doubt.  Note that a prosecutor need not prove a lack of consent if the victim is a minor, intoxicated, unconscious, or mentally incapacitated.  A victim in these categories cannot legally give consent.
  • Your belief that there was consent was reasonable: You can still fight a Penal Code 289 accusation even if there was no actual consent.  If you actually and reasonably believed there was consent, then this could serve as a legal defense to a Penal Code 289 PC charge.  The fact finder assesses the reasonableness of your belief by considering whether an average, reasonably prudent person facing the exact same circumstances as you would think the same.
  • False Accusation: There are many reasons why people face false accusations of forcible penetration with a foreign object. The false accuser could be a former lover or business partner that harbors resentment or jealousy.  Regardless of the source of the false Penal Code 289 PC charge, the best way to counter false accusations is to diligently mount a defense that you did not commit the crime.  This includes garnering physical evidence, alibis, and witness testimony.

Similar Offenses to Penal Code 289 PC

The following offenses may be charged independently or concurrently with Penal Code 289 PC.

Penal Code 288a (Oral Copulation By Force or Fear)

Penal Code 288a differs from Penal Code 289 PC in that the criminal act is oral copulation as opposed to sexual penetration with a foreign object.  It is not uncommon to see these charges brought together because sexual assault cases often involve many different sex acts.  Hence, a defendant often faces counts of Penal Code 288a along with counts of Penal Code 289 PC.  The potential penalties for Penal Code 288a are the same as for Penal Code 289 PC.

Penal Code 261 (Rape)

In California, rape is defined as sexual intercourse committed through the use of threats, force, or fraud.  It differs from Penal Code 289 PC in that the sexual act is intercourse as opposed to forcible penetration with a foreign object.  However, it is not uncommon to see Penal Code 261 rape and Penal Cod 289 PC charged together.  Penal Code 261 rape is a felony that may result in up to 8 years in a California state prison.

Penal Code 243.4 (Sexual Battery)

In California, sexual battery is defined as the touching of another person’s intimate parts for the purpose of sexual gratification, abuse, or arousal without their consent.  Penal Code 243.4 sexual battery is considered a wobbler, which means prosecutors have the discretion to charge the crime as either a misdemeanor or felony.  It carries a potential sentence of up to 4 years in prison.  Because Penal Code 289 PC carries a more severe sentence, many defendants often choose to plea bargain to a Penal Code 243.4 instead.

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