CA Penal Code 289 PC - Forcible Sexual Penetration with a Foreign Object
California Penal Code 289 PC defines the crime of "forcible penetration with a foreign object." This law states that it is illegal to penetrate the vagina or anus of a victim using a foreign object through force or intimidation, without their consent.
A conviction under PC 289 can result in up to 8 years in state prison. If the victim is a minor under 14, the penalty increases to 12 years. Additionally, the court may require the offender to register as a tier-three sex offender under Penal Code 290 PC.
Prosecutors usually aggressively seek convictions for most sex-related offenses, especially for felony crimes if the victim could not voluntarily consent due to certain conditions, such as:
- The victim has a physical impairment or disability,
- The victim has a mental disorder or illness,
- The victim was unconscious.
- The victim was a minor, or
- The victim was too intoxicated to resist sexual advances.
Unwanted Sexual Touching
In California, sex crimes start at their least serious level with misdemeanor Penal Code 243.4 PC sexual battery, which involves unwanted sexual touching and can lead to up to six months in jail.
In contrast, Penal Code 289 PC, which covers foreign object sexual assault, is a far more serious offense than a misdemeanor sexual battery under Penal Code 243.4 and is a common sex charge in California.
PC 289 has a maximum sentence of eight, ten, or twelve years in prison. In the same case, prosecutors might charge someone with both Penal Code 243.4 sexual battery and Penal Code 289 foreign object sexual assault because sexual battery is a lesser included offense of foreign object assault.
However, the double jeopardy clause generally prevents a person from being convicted of both crimes.
What Exactly Is Foreign Object Sexual Assault?
California Penal Code 289 PC is distinctive because it involves the act of the perpetrator introducing specific objects, such as:
- Any kind of foreign object,
- Substance, instrument, or
- Any device other than a sexual organ used in the genital or anal area.
A foreign object must be used without the victim's consent and for sexual pleasure. California Penal Code 289(a)(1)(A) specifies that forcible penetration with such an object is defined as follows:
- "Any person who commits an act of sexual penetration accomplished against the victim's will by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or someone else."
While "sexual penetration" might suggest a Penal Code 261 PC involving a male sex organ, Penal Code 289(k)(1) clarifies that it refers to the insertion of a foreign object, substance, instrument, device, or any unknown object into the genital or anal opening.
Types of "Foreign Objects"
The offense under Penal Code 289(k)(2) can involve fingers, hands, toes, tongue, bottles, or anything aside from a sexual organ. Related California crimes include Penal Code 287 for oral copulation by force or fear, Penal Code 261 for rape, and Penal Code 261.5 for statutory rape.
Penal Code 289(a)(2) includes threats of retaliation against the victim or others as a form of coercion to carry out a crime.
This means that the perpetrator does not need to employ force or instill immediate fear; instead, they can threaten future injury. Penal Code 289(b) addresses the crime of foreign object penetration against individuals who are unable to give legal consent to sexual activity.
This incapacity may stem from a mental disorder or physical disability, provided it can be proven that the perpetrator knew or should have reasonably known about the victim's inability to consent.
Penal Code 289(d) addresses committing a sexual penetration offense against an unconscious victim, provided it can be proven. This covers situations where the victim was not unconscious but also unaware or asleep.
What are the Enhanced Penalties?
Penal Code 289 PC elevates the maximum sentence to eight years for foreign object sexual assault in specific situations.
- If the victim was a minor aged fourteen or older, the penalty can be increased to up to ten years in prison (Penal Code 289(a)(1)(C)).
- If the victim was a child under fourteen, the penalty increases to up to twelve years in prison (Penal Code 289(a)(1)(B)).
As mentioned earlier, a conviction under Penal Code 289 PC requires a defendant to register with California's sex offender registry.
The Sex Offender Registration Act obligates convicted sex offenders to register at their local police station in the area where they reside.
How Can You Defend Against Foreign Object Charges?
If charged with this serious crime, you will have an experienced California criminal defense lawyer to give you the best chance of a favorable outcome. Some common defenses for Penal Code 289 PC charges include:
- The victim provided consent.
- You had a reasonable belief that the victim consented.
- No sexual penetration occurred.
- False accusation.
In certain cases involving foreign objects, prosecutors struggle to establish all the crime's elements because there are two conflicting stories. Additionally, they must prove the defendant's specific intent or guilty mind, which can be difficult.
Evidence of intent is often circumstantial and may be contradicted by other facts in the case. This creates reasonable doubt about whether the unlawful sexual acts took place or whether the prosecutor can definitively prove intent.
Defendants often argue that the alleged victim initially consented to the sexual activity but later reconsidered.
Another common defense involves allegations of police misconduct during the investigation or interrogation, which might lead to a motion to suppress evidence.
We may also negotiate with the prosecution for reduced charges or case dismissal through prefiling intervention. Contact the Hedding Law Firm in Los Angeles for a case review.
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