Forcible Sexual Penetration

The legal system treats sex crimes, including forcible sexual penetration, seriously. District attorneys vigorously seek convictions in these cases due to the significant and lasting harm inflicted upon victims.

Forcible sexual penetration, as per Penal Code Section 289, involves non-consensual sexual penetration or sexual assault achieved through force, threats, or coercion, often utilizing a foreign object. PC 289 lays out various scenarios and legal consequences for those found guilty, including incarceration, fines, and the possibility of sex offender registration.

The legal system's stance on non-consensual sexual penetration aims to deliver justice to victims, ensure public safety, and hold perpetrators accountable. As such, district attorneys are relentless in their pursuit of convictions. You need an equally aggressive criminal defense attorney to challenge the charges.

The team at Pasadena Criminal Attorney breaks down the crime below, as outlined under California law.

Forcible Sexual Penetration With  Foreign Objects Under California Law

PC 289 defines this crime and outlines specific elements prosecutors must establish to secure a conviction. Only then will the jury find you guilty of the crime. Forcible sexual penetration can be accomplished in the following ways:

• By Force, Menace, or Fear

For a jury to find you guilty of violating PC 289(a), prosecutors must establish the following:

1. You engaged in sexual penetration — This involves penetrating the genitalia or anal opening of the victim by using a foreign object, instrument, device, or substance.
2. You conducted the act against the victim's will.
3. You used force, violence, menace, duress, or fear — This could include physical force or the threat of immediate bodily harm directed at the victim or another person.

Sexual penetration is legally defined as any of the following acts performed with the intent of sexual abuse, arousal, or gratification:

1. Any form of penetration, regardless of how slight, of the victim's genitalia or anal opening.
2. Compelling the victim to engage in any degree of penetration of the genitalia or anal opening of either the defendant or a third party.
3. Forcing the victim to engage in any level of penetration of their genitalia or anal opening.

Sexual penetration can be legally deemed to have occurred even if there was no actual penetration of the vagina for female victims. Generally, penetration of the labia majora (the outer folds of the vulva) is sufficient. This is especially true if it is done for sexual abuse, gratification, or arousal and is non-consensual.

A pre-existing relationship or communication alone does not confirm consent. Consent must consistently be both freely given and fully informed at the time of the sexual activity. This principle holds regardless of prior relationships, marital status, or specific requests related to the act.

Therefore, the following facts, by themselves, do not serve as conclusive evidence that the alleged victim genuinely consented to sexual penetration:

1. You and the victim were dating or had dated.
2. You and the victim were or had been married.
3. The victim requested that you use a condom.

• Forcible Sexual Penetration of a Disabled or Mentally Ill Victim

You violate PC 289(b) when you:

1. You engaged in an act of sexual penetration.
2. During the sexual penetration, the victim had a mental disorder or developmental or physical disability that rendered them incapable of legal consent.
3. You knew or reasonably should have known about the victim's incapacity to give legal consent due to their mental disorder or disability.
4. The sexual penetration was non-consensual, as the victim's incapacity precludes them from providing legal consent.

• Forcible Sexual Penetration on an Unconscious Person

A jury will convict you of violating PC 289(c) if:

1. You engaged in an act of sexual penetration.
2. You and the victim were confined in a mental health care facility when the sexual penetration occurred.
3. The victim of the sexual penetration, had a developmental disorder, mental disorder, or physical disability that rendered them incapable of giving legal consent.
4. You were or should have been aware of the victim's incapacity to provide legal consent due to their developmental disorder, mental disorder, or physical disability.
5. The sexual penetration was non-consensual, as the victim's incapacity precludes them from providing legal consent.

“Unconscious of the nature of the act" includes various scenarios:

1. The victim is physically unconscious or asleep.
2. The victim is unaware that the sexual act is happening.
3. The victim is unaware of the essential characteristics of the act due to deception or concealment by the perpetrator.

As a result, the victim does not necessarily have to be physically unconscious or asleep for you to be found guilty of certain sexual offenses. The key is whether the victim could not provide informed and voluntary consent due to the above circumstances.

• An Intoxicated Victim

If the victim was intoxicated, your actions violate PC 289(e). These cases involve situations where the victim's ability to resist is compromised due to intoxication or the influence of substances. In these circumstances, a person is considered too intoxicated to provide valid consent if they are unable to comprehend and assess:

1. The physical and moral nature of the sexual penetration and
2. Its likely consequences.

This legal standard determines whether a person's intoxication or substance influence prevents them from giving informed and voluntary consent.

• Forcible Sexual Penetration by a Public Official

There have been cases where public officials abused their authority to commit violations under Penal Code Section 289(g). This typically occurs when the perpetrator, as a public official, threatens the victim, coercing them into non-consensual sexual penetration. In these cases, the law is structured to address instances where victims are compelled into sexual acts due to the threat of power abuse by the offender, who claims the authority of a public official.

Note: Per PC 289(k)(2), a foreign object, instrument, substance, or device includes non-sexual organ body parts, like hands or fingers. Further, Per PC 289(k)(2), the term "unknown object" includes situations where it is uncertain whether penetration involves a penis, a foreign object, instrument, substance, device, or any other body part. This definition is deliberately broad to cover a range of possibilities in cases related to sexual offenses.

Defenses You Can Use to Challenge the Forcible Sexual Penetration Charges

If you are facing charges of forcible sexual penetration, you have the right to fight these charges in court. The legal system allows you to present a defense, challenge evidence, and have your case heard by a judge and/or jury. Here are some common defense strategies you can consider:

• The Alleged Victim Consented

Consent to sexual activity is a fundamental aspect. It requires voluntary, informed, and mutual agreement among all involved parties. This agreement should be willingly given without coercion, and all participants have the right to withdraw consent at any point.

Those providing consent must have the legal and mental capacity to make rational decisions, free from the influence of substances. Consent is an ongoing process, and it should be understood that consent for one sexual act does not imply consent for all.

Proving or disproving consent in legal contexts can be challenging, particularly in sexual offense cases where the burden of proof lies with the prosecution, requiring evidence beyond a reasonable doubt. "He-said, she-said" situations could arise. This thus requires credible witnesses and the ideal evidence.

• Reasonable Belief of Consent

When you reasonably believe consent existed in a specific situation, communicate this to your legal defense team. Sometimes, this belief in consent can be a pivotal aspect of your defense strategy, potentially influencing the case's outcome.

Furthermore, many jury members can relate to scenarios involving uncertainties about one partner's consent to a particular sexual act. In trials related to sexual offenses, jurors are entrusted with thoroughly evaluating the available evidence and determining if the prosecution has met the burden of proving its case beyond a reasonable doubt. This often involves a detailed assessment of elements such as:

1. Consent.
2. The credibility of individuals involved, and
3. The case's specific circumstances.

In these legal proceedings, the aim is to provide a fair and meticulous examination of the evidence and the mental states of all parties.

• You are a Victim of False Accusations

False accusations can originate from personal relationships. It can be emotionally taxing and legally intricate. In cases linked to child custody and divorce, false allegations could emerge to influence custody hearings, making the situations even more complex.

This defense could encompass various strategies:

1. Providing a verifiable alibi is a potent defense strategy — It involves establishing that you were in a different location or with other individuals at the time of the alleged crime.
2. Compiling and presenting physical evidence is imperative — This could involve DNA evidence, surveillance footage, phone records, or any other pertinent materials that substantiate your innocence.
3. Eyewitnesses who corroborate your whereabouts or provide information contradicting the allegations can carry substantial weight. These witnesses include friends, family, or individuals with you during the alleged incident.
4. Character witnesses can vouch for your reputation and credibility, which hold significant value in cases involving allegations of this nature.
5. Expert witnesses, for example, forensic experts or medical professionals, can furnish testimony that challenges the claims put forth by the prosecution.

If there are disparities or contradictions in the statements or testimony of the accuser, your defense can highlight these during the legal proceedings. Your defense attorney will cross-examine the accuser and other witnesses to pinpoint vulnerabilities in their testimony.

In some instances, it may be essential to demonstrate that the accuser is motivated to make false allegations or harbors a bias against you.

• Touching Occurred, But There Was No Sexual Penetration

Sexual penetration is generally defined as any of the following when done for sexual abuse, arousal, or gratification:

1. Any penetration, however slight, of the genitalia or anal opening of the victim.
2. Causing the victim to penetrate, however slightly, the genitalia or anal opening of you or a third party.
3. Causing the victim to penetrate, however slightly, his/her genitalia or anal opening.

Sexual penetration involves various acts involving the genital or anal areas and is not limited to traditional sexual intercourse. The prosecution must establish the absence of the victim's consent and the use of force, violence, menace, duress, fear, or other factors as specified in the relevant section of PC 289 to secure a conviction for a crime like forcible sexual penetration.

If you want to argue that the legal definition of sexual penetration is not met as a defense, you could challenge the presence of these elements. Remember that each case is unique, and the success of this defense approach depends on the specific circumstances and the legal arguments presented by your defense attorney.

• You Were Mistakenly Identified as the Culprit

Mistaken identity is a legitimate defense strategy in cases involving alleged forcible sexual penetration. To employ this defense effectively, your legal counsel collects corroborating evidence like alibis, witness statements, or surveillance footage. This evidence aims to establish that you were not the perpetrator of the alleged offense.

Various factors can contribute to mistaken identifications by victims. Some common causes include:

1. Adverse visibility conditions.
2. The presence of extreme stress and fear during the crime.
3. Fixation on the weapon used.
4. Difficulties in cross-racial identifications.
5. Suggestive identification procedures employed by law enforcement.
6. The distortion of memories over time.
7. Errors in memory recall induced by stress.
8. Racial stereotypes or biases.
9. The involvement of multiple suspects and
10. Potential miscommunications during the initial reporting of the crime.

Note: Victims can genuinely believe they are identifying the correct individual, even when mistaken. Consequently, ensuring a fair and comprehensive legal process is essential to evaluating identification accuracy and accounting for potential misidentifications. An effective defense involves introducing evidence substantiating the claim of mistaken identity and presenting it in court to contest the allegations.

It is essential to recognize that rape and forcible sexual penetration with a foreign device are distinct crimes under the law, despite some potential similarities in the acts involved. Rape, as outlined in PC 261, involves non-consensual sexual intercourse. It primarily pertains to sexual penetration with a penis without the victim's consent.

Penalties for Forcible Sexual Penetration

Penalties vary depending on the facts of your case. Below are the potential sentences you will receive if convicted of a PC 289 violation.

1. Formal probation — However, formal probation is only available if you are convicted of forcible sexual penetration of a disabled individual. You are ineligible for formal probation if you used force, fear, or menace or if the victim was intoxicated.
2. An imprisonment sentence of 3, 6, or 8 years.
3. A maximum fine of $10,000.

The penalties increase if the victim of the forcible sexual penetration with a foreign instrument is a minor (an individual under 18 years old). Convictions result in the following penalties:

1. 6, 8, or 10 years in prison if the victim is 14 years or older.
2. 8, 10, or 12 years in prison if the victim is less than 14 years old.

Sexual Offender Registration Requirement

California has a three-tiered sex offender registration requirement. This system classifies individuals convicted of sexual offenses into three tiers based on the offense's severity and potential community risk. Each tier determines the duration and scope of registration and public notification obligations:

1. Tier I — For less severe offenses, registration typically lasts for ten years.
2. Tier II — Offenses falling under this tier often involve a 20-year registration requirement.
3. Tier III — The most serious offenses are categorized here, often mandating lifetime registration.

A conviction for violating the following subsections will result in the courts imposing a sexual registration period of no more than ten years. These violations are Tier I offenses. They include violations of:

1. PC 289(c) — Forcible sexual penetration of an unconscious individual.
2. PC 289(f) — Forcible sexual penetration conducted when the victim submits to the act under the false belief of the offender.
3. PC 289(g) — Forcible sexual penetration conducted by an individual who uses his/her authority as a public official to threaten and coerce the victim.
4. PC 289(h) — The victim of the act was a minor.
5. PC 289(i) — The victim of the act was under 16 years old, and the offender was over 21 years old.

You will be required to register as a Tier II offender if the following circumstances are true:

1. You accomplished the act by threatening the victim of retaliatory harm to the victim or his/her loved ones or
2. When the victim is incapable of consenting due to a developmental disorder, mental disorder, or physical disability.

You will be required to register as a Tier III offender if the following circumstances are true:

1. You engaged in the act by using fear, force, menace, or duress (PC 289(a)).
2. The victim was unconscious (PC 289(d)) or too intoxicated (PC 289(e)), or
3. The victim was 14 years old or younger at the time, and you were more than ten years the victim’s senior (PC 289(j)).

Registered sex offenders are typically required to renew their registration and provide updated information to local law enforcement agencies and the California Department of Justice in compliance with Megan's Law. This renewal is necessary annually, typically within five working days of your birthday and whenever you change your residence.

Megan's Law encompasses the legal framework that mandates sex offender registration and community notification. Registered sex offenders must keep their registration information current, which includes updating their address, employment information, and other details as specified by law.

Forcible Sexual Penetration Investigations

The investigative process begins when the victim reports the incident to law enforcement. The victim could contact the police, a medical facility, or a crisis center to report the sexual assault. Law enforcement will then conduct an initial interview with the victim to gather essential information about the incident.

This interview aims to collect a detailed account of what transpired, including when and where the incident occurred and any information about the perpetrator. The investigator will also inquire about any injuries or physical evidence relevant to the case.

Despite the training of law enforcement officers in impartiality and objectivity, biases, whether overt or implicit, can sometimes influence their handling of cases.

Throughout the investigation, it is essential to adhere to these important guidelines:

1. Avoid contacting the alleged victim — Refrain from interacting with the alleged victim. This can have legal implications and complicate the case.
2. Steer clear of witness communication — Do not engage with potential witnesses, which can also impact the investigation's integrity.
3. Exercise your right to remain silent — When questioned about the incident, particularly in cases involving allegations of sexual offenses, it is wise not to provide statements to law enforcement or anyone else without consulting your attorney. This safeguards your rights and prevents inadvertent disclosures that could harm your case.

These measures are critical for safeguarding your rights and interests during an investigation. Remember, you have the right to remain silent and to have legal representation present during questioning.

Impact of a Conviction on Forcible Sexual Penetration With Foreign Object Charges on Immigration and Gun Rights

PC 289 violations are crimes involving moral turpitude (CIMTs). These offenses can lead to deportation for non-U.S. citizens. In immigration law, crimes of moral turpitude generally involve conduct that is considered morally reprehensible. Thus, non-citizens convicted of the crime face deportation and denial of re-entry to the country.

In California, individuals convicted of a felony are prohibited from owning or possessing firearms. This means owning, having, or purchasing guns after conviction is a crime. A conviction would result in further penalties.

Find a Criminal Defense Attorney Near Me

Criminal defense attorneys employ various defense strategies at different stages, including the pre-filing and court stages, to protect defendants' rights in PC 289 violation cases. These strategies aim to challenge the prosecution's case and secure the best possible outcome for the accused.

Each case is unique, and defense strategies vary based on the specific circumstances. Experienced criminal defense attorneys assess the case details and identify the most effective strategy. They work to protect the defendant's rights and seek the best possible outcome, whether an acquittal, reduced charges, or a favorable plea agreement. This is our commitment to all our clients.

Contact the Pasadena Criminal Attorney today at 626-689-2277 for a comprehensive assessment of your case. Let our attorneys fight to protect your rights and achieve the best legal outcome.