The law on the crime of sexual penetration by foreign object with force, fear, or threats, is found at California penal code sections 289(a) through 289(h).

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Per PC 289, sexual penetration means penetration 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.

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Note: penetration for sexual gratification is self-explanatory while penetration for sexual abuse means penetration for the purpose of pain, injury, or discomfort.

 

Degree of Penetration: 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)

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Foreign Object: 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.

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To be found guilty of sexual penetration by object with force, fear, or threats, under PC 289(a)(1), the district attorney must prove all of the following:

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• The defendant committed an act of sexual penetration with another person (either for sexual gratification or sexual abuse)

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• The penetration was accomplished by using a foreign object or an unknown object

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• The person penetrated did not consent to the penetration

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• The defendant accomplished the act of penetration, even if the penetration was slight or for a very short duration

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• 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)

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Consent: Per PC 289, in order to consent to sexual penetration, a person must act freely and voluntarily and know the nature of the act to which he or she is consenting. 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, including non verbal communication.

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Punishment

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Prison: 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.

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Note: Probation is not allowed in PC 289(a)(1) cases. Also, any incarceration related to PC 289(a)(1) must be served in prison (as opposed to county jail) and no part of that prison sentence may be split or suspended.

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CIMT: Sexual penetration by object crimes are considered crimes involving moral turpitude. This means that an arrest or conviction (especially conviction) for a PC 289 crime can carry severe collateral consequences for licensed professionals and non US citizens. 

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Three Strikes Law: PC 289(a)(1) is 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).

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Defenses

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Common defenses include: alibi defense, coerced confessions, improper police procedure which leads to the dismissal of prosecution evidence, insufficient evidence, statute of limitations, consent, mistake of facts, reasonable belief of consent, and more.

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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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909-913-3138

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