Sexual Penetration by Foreign Object with Force, Fear, or Threats Law & Defense
California Penal Code Section 289
The law on the crime of sexual penetration by foreign object by force, fear, or threats, is found at California penal code sections 289(a) through 289(h).
There are many varieties of sexual penetration charges that are covered under PC 289. The most common of these is the charge of sexual penetration by force, fear, or threats, which is charged under PC 289(a)(1), PC 289(a)(2), or PC 289(g), and sexual penetration by force on a minor (PC 289(h)).
(A more complete list of sexual penetration charges, with associated penalties, is listed below at right).
Sexual penetration, as charged under PC 289, means penetration, by the defendant, 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.
Note: penetration for sexual gratification is self-explanatory while penetration for sexual abuse means penetration for the purpose of pain, injury, or discomfort.
Under PC 289, sexual penetration is complete no matter how slight the penetration or how short the duration of penetration; however, to prove that the defendant is guilty of PC 289, the district attorney must prove that there was at least some penetration. (attempted penetration is a possible charge in the situation where there is no evidence that the defendant sexually penetrated the alleged victim)
A foreign object, according to PC 289, may be a substance, instrument, or device, or part of a body. It is often the case that a person stating that he or she was penetrated by the defendant does not know what penetrated him or her during a sexual assault. Therefore, a sexual penetration by foreign object charge is a preferred charge over a rape charge if the person making the statement does not know what object penetrated his or her genitals.
To be found guilty of sexual penetration by object with force, fear, or threats, under PC 289(a)(1), the district attorney must prove that:
- The defendant committed an act of sexual penetration with another person (either for sexual gratification or sexual abuse)
- The penetration was accomplished by using a foreign object or an unknown object
- The person penetrated did not consent to the penetration
- The defendant accomplished the act of penetration, even if the penetration was slight or for a very short duration
- The defendant used force, fear, or threats, while penetrating (remember, penetration can be of any person, including the defendant, so long as the penetration is directed by the defendant)
Under PC 289 crimes, in order to consent to sexual penetration a person must act freely and voluntarily and know the nature of the act. This means that an unconscious, sedated, sleeping, or disabled person, does not give consent simply because he or she voices no objection to the penetration. However, consent may be implied by factual circumstances.
Punishment for Sexual Penetration
If found guilty of PC 289(a)(1), sexual penetration by object by force, fear, or threat, the defendant may face up to eight years in prison, be ordered to register as a sex offender, be ordered to pay massive monetary fines and restitution, be ordered to stay-away from the victim, and more.
PC 289(a)(1) is considered a serious and violent felony as those terms are described in the California penal code. This means that a conviction of PC 289(a)(1) will be deemed a "strike" under California's Three Strikes law and any prison sentence served by the defendant after conviction will require the defendant to serve a minimum of 85% of his or her sentence in actual custody (no electronic monitoring or work-release allowed).
Defenses to PC 289(a)(1) Sexual Penetration Crimes
Common defenses include: alibi defense, coerced confessions, improper police procedure which leads to the dismissal of prosecution evidence, insufficient evidence, statute of limiations, consent, mistake of facts, and more.
Note: it is a defense to a charge of sexual penetraiton charged under PC 289(a)(1) to prove that the defendant actually and reasonably believed that the other person consented to the act of sexual penetration. Consent is perhaps the most common defense to most PC 289 crimes except PC 289(h) sexual penetration on a minor.
It is also a defense to a charge of PC 289(a)(1) to prove that penetration was not accomplished.
As stated, in some cases, it may be possible to have criminal PC 289 charges dismissed for lack of sufficient evidence, but more commonly, the charges, or the sentence associated with the charges, are reduced when the evidence is weak in sexual penetration crimes.
If you or a loved one is charged with sexual penetration by object by force, fear, or threats under PC 289(a)(1), PC 289(a)(2), or PC 289(g), contact our sex crimes criminal defense attorneys without today. Time is not on your side when faced with criminal charges and the defendant needs to start an aggressive defense immediately.
Our sex crimes criminal defense attorneys will patiently explain your rights and options during one of the most serious and stressful times in you and your family's life.
Our firm has successfully defended hundreds of sex crimes criminal charges and there is no fee for an initial in-office consultation with you or your family. Call today!
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Crimes Related to PC 289: Sexual Penetration
PC 289(a)(1)(A) Sexual penetration with object by force [Prison sentence up to eight years]
PC 289(a)(1)(B) Sexual penetration by object on victim under 14 yrs old with force [Prison sentence up to twelve years]
PC 289(a)(1)(C) Sexual penetration by object on victim 14-17 years old with force [Prison sentence up to ten years]
PC 289(a)(2) Sexual penetration by object by force [Prison sentence up to eight years]
PC 289(b) Sexual penetration by object on incompetent victim [Prison sentence up to eight years]
PC 289(d) Sexual penetration by object on unconscious victim [Prison sentence up to eight years]
PC 289(e) Sexual penetration by object on intoxicated person [Prison sentence up to eight years]
PC 289(g) Sexual penetration by object with force [Prison sentence up to eight years]
PC 289(h) Sexual penetration by object on victim under 18 yrs old without force, fear, or threats [Prison sentence up to three years]