California has a low tolerance for sex crimes, and a conviction for any sex offense can have devastating effects on your life. If you are arrested for alleged forcible sexual penetration, you should not hesitate to reach out to the California Criminal Lawyer Group for legal representation.

Understanding California Law on Forcible Sexual Penetration

Forcible sexual penetration is also referred to as forcible penetration with a foreign object or sexual penetration by force or fear. As per PC 289, the crime happens when there is any sexual penetration of the genitals or anal opening of somebody else without consent, done using a foreign object, instrument, or substance, with the intent to cause arousal, sexual gratification or abuse. Note that however slight the penetration is, it still counts as a crime. If you cause another person to penetrate the offender’s or another person’s genitals or anal opening for arousal, gratification, or abuse, you will be subject to charges of violating PC 289. Also, this sex crime requires that the offender accomplishes the penetration using force, violence, or threats to cause bodily harm.

Note that you will face the same charges of PC 289 violation if you commit sexual penetration on somebody who is:

  • Unconscious of the act
  • Unable to give consent because of their mental condition or physical disability
  • Too drunk or drugged to give consent

Elements of Forcible Sexual Penetration

Allegations are not enough to get the defendant convicted of this sex crime. The prosecution must prove particular elements of the crime to demonstrate to the court that you are guilty. Some of the elements are:

  1. Sexual Penetration

According to PC 289, penetration is the opening of genitals or anal orifice. Sexual penetration can be to the victim, another person, or the defendant. Even if the penetration were just on the labia, the prosecution would still find you guilty. Another critical thing to understand is that sexual penetration must be done for sexual gratification, arousal, or abuse.

  1. Penetration was Done Using a Foreign Object

Foreign objects under PC 289 means virtually any object, including human body parts but not sexual organs. If you use sexual organs to penetrate genitals or anal opening of another person sexually, it becomes rape. In some cases, a penis or sexual organ can be considered a foreign object if it is not known to the victim. A foreign object is essentially any substance, device, or an unknown thing. 

  1. Against the Victim’s Will

When prosecuting PC 289 offenders, the prosecutor must prove that you accomplished the sexual penetration using the foreign object without the consent or against the will of the victim. The majority of cases involving this sex crime often center on whether the defendant had consent. Consent for penetration means that the victim understood the nature of the act and acted freely and voluntarily. Remember that just because:

  • You dated or are dating the victim
  • You are married or were married to the victim
  • The victim requested you use a condom that doesn’t mean that you had consent.

  1. Forcible penetration

You will get a conviction if the prosecution can prove that you made use of the following to achieve a penetration:

  • Use of physical force to overpower the victim
  • Use of threats or force on the victim to the extent a sober person would be forced to engage in sexual conduct they would otherwise not have engaged in were it not for the threats.
  • The threat of immediate bodily harm or death
  • A threat to retaliate if the victims fail to obey your demands

It’s essential to understand that it is not a must that you, as the defendant, make use of force, coercion, or fear on the victim for sexual penetration. Where the victim is disabled or has a mental condition such that he or she doesn’t understand the nature of the act, they are legally incapable of giving consent, so the court will still find you guilty even if you didn’t use force. But if you were not aware or could not have reasonably known the victim had a mental disorder or physical disability, the court will not find you guilty of PC 289 violation.

Penalties for Forcible Sexual Penetration Conviction

A conviction for PC 289 violation in California carries severe punishments because the offense is a felony. Some of the possible penalties include:

  • Felony probation
  • 3, 6, or 8 years’ incarceration in a California prison
  • Court fines not beyond 10,000 dollars

The penalties for the crime depend on the subsection you are accused of violating as follows.

Forcible Sexual Penetration of a Minor

The above penalties will be imposed if the alleged victim is an adult. If the victim is a minor 14 years or below, you will be severely punished. You will be sentenced to eight, ten, or twelve years in state prison. However, for the prosecution to convict you of the sex offense, they must prove to the court the victim was 14 years or younger.

If the victim is a minor 14 years or above but below 18 years, the punishment for a sentence is six, eight, or ten years in prison. You will realize that the punishment for PC 289 violation depends on the age of the victim. The younger the victim of the crime, the severer the consequences.

Note that if the alleged victim has a mental disorder or illness but is an adult, the penalties will be 3, 6, or 8 years in prison. Sentencing will also be different if both the defendant and the victim have mental disorders. Forcible sexual penetration where the accuser and accused are handicapped is a wobbler. If the perpetrator of the crime is mentally disabled, the court will impose a lesser sentence of 16, 24, or 36 months in prison.

Sex Offender Registration

Apart from the penalties above, a person found guilty under PC 289 is required to register as a sex offender. The registry system in California has three tiers with the first tier targeting low-level offenders. If you register under the first tier, you will appear in the registry for less than ten years.

Second-tier, on the other hand, is for mid-level offenders. The registration under this tier lasts for a minimum of twenty years. Third-tier is the registry for high-level offenders, and it usually lasts for a lifetime. The majority of offenders convicted under PC 289 register under the third-tier if the victim was a minor below 14 years and ten years younger than the offender. Also, if the victim of forcible sexual penetration was too intoxicated to consent to the act or unconscious, the offender will register under the third-tier upon conviction.

For you to register as a sex offender, you are supposed to visit a local police station and share details regarding where you live, address, place of work, and other identity information. You will be required to renew the registration annually, within five days of your birthday or when you relocate to a new place.

Note that registering as a sex offender can adversely impact your social and personal life. Social stigma makes it almost impossible to interact with people, not to mention the time you have to spend in prison. For this reason, it’s advisable to work with the California Criminal Lawyer Group to build a strong defense to prevent a conviction.

Fighting Forcible Sexual Penetration Charges in Court

Not everyone alleged to have committed this crime is guilty, but people end up in prison all the time for a crime they didn’t commit. Depending on the nature of your case, an excellent criminal attorney can contest the charges, which is why you shouldn’t lose hope. Some of the possible defenses you can use include:

  1. There was Consent

You can assert that the accuser was a consensual participant in the act and had given consent. Remember, the prosecution may find it very difficult to prove a lack of consent because it is usually the accuser's word against that of the accused. If you reasonably believed that the victim was willing to engage in the act, then you are innocent. However, if the victim was a minor, handicapped, unconscious, or intoxicated at the time of the incident, arguing that you had consent will not help your case because these people are not legally capable of giving consent.

  1. False Allegations

Different motives push people to accuse others of forcible sexual penetration falsely. The majority of people who falsely accuse others are people who hold resentments or jealousy against the accused. Whatever the accuser's motive, if you have an excellent criminal defense attorney, you can prove that the accuser is lying or making accusations to get back at you for something. The attorney will rely on physical evidence to prove that the accuser's allegations are not valid, and the accused could not have simply committed the crime.

Note that under this defense, you can argue that the alleged victim engaged in the sexual conduct willingly and later regretted it, thus the reason for falsely alleging you engaged in the conduct forcibly.

  1. No Sexual Penetration Involved

If there is no evidence to demonstrate that there was sexual penetration on the alleged victim using foreign objects, no sentencing will occur under PC 289. You could use this defense, primarily if touching occurred during the incident that led to charges under PC 289.

The legal defenses listed above cannot be applied in every case. Each case under these charges is different. It means your attorney has to tailor-make the above defenses to fit your situation. You should share details of the case with your attorney because even the simple details are critical in building a defense. Doing so will aid in creating robust defense theories that will see the charges reduced or dismissed.

Statutes of Limitation for Forcible Sexual Penetration

The statutes of limitation for sex crimes in California are broader than other crimes. It is an indicator of the efforts made in the state to fight sex crimes by allowing victims of sex offenses to come forward and file lawsuits. Giving sex crimes victims more time to file lawsuits enables them to heal first and then come out strong without fear of victimization. The time limits for forcible sexual penetration charges are as follows:

  • If a felony PC 289 charge involves a victim under the age of 18, the case can be prosecuted before the victim's 28th birthday.
  • A felony PC 289 charge involving an adult has a time limit of ten years.
  • Where forcible sexual penetration is charged as a misdemeanor, the time limit for prosecuting the case is twelve months after the incident.

Exceptions of Statutes of Limitation

Particular exceptions have also been put in place as per PC 803 to ensure that victims of sex offenses can file charges against the perpetrators of the sexual conduct decades after the incident. Some of the exceptions are:

Independent Collaborating Evidence

You can file a complaint within one year after you recorded a statement with the police, alleging that you were a victim of forcible sexual penetration when you were a minor. Your age at the time of recording the statement is not essential. A person of any age could file a statement if he or she was a victim of forcible sexual penetration at the age of 18 or younger.

However, this exception will apply in your case if you meet particular requirements. These are:

  • Your statutes of limitation have expired.
  • Substantial sexual conduct including forcible sexual penetration was involved.
  • Aside from the opinion of the mental health professional, there is independent evidence to corroborate or confirm your allegations.
  • If you were 21 years or above, when you recorded a police statement, the independent evidence will be used as evidence to support the accusations.

DNA Exception Rule

A forcible sexual penetration complaint can be filed within one year after the DNA evidence is used to identify the suspect positively. However, the exception will only apply under the following conditions:

  • The crime was committed before 1st January 2001, and the DNA evidence collected tested not past 1st January 2004.
  • The sex crime happened on or after 1st January 2001, and the DNA evidence tested within two years after the offense.

If the above exceptions can apply in your case, then you have years if not decades after the sex offense incident to bring a criminal complaint against the perpetrator.

Offenses Similar to PC 289

Particular offenses can be charged concurrently or in place of forcible sexual penetration. These are:

  1. Oral Copulation by Force

PC 288a defines the offense as any contact, however slight, between the mouth of one party and the sexual organ or anus of another using force or fear. With the definition in mind, you will realize that the crime is very similar to forcible sexual penetration. The only difference is that in oral copulation by force, there is no penetration while under PC 289, the prosecution must prove there was sexual penetration.

Remember, most sex crimes involve many allegations with victims claiming that the perpetrator engaged in multiple sexual conducts. For this reason, you might face even two charges at the same time. You can be charged with both PC 288a and PC 289 violations. During prosecution under PC 288a, the prosecutor must prove the following elements:

  • You engaged in oral copulation conduct with someone else.
  • The person you performed the act with wasn’t willing or had not given consent.
  • The use of fear or threats accomplished the act of oral copulation.

The crime of oral copulation is a felony. Upon sentencing, you will face the same penalties as PC 289. You could serve a prison sentence of three, six, or eight years in prison and up to twelve years if your victim or the accuser is a minor.

  1. Rape

PC 261 is the statute that defines rape as non-consensual sexual intercourse with somebody else using force, fear, or fraud. The definition is very similar to that of PC 289. The only difference is sexual intercourse. In most cases involving non-consensual sex, you could be charged with both rape and forcible sexual penetration. When prosecuting cases of rape, the prosecutor must show the following facts:

  • You had sexual intercourse with another individual
  • You and the accuser were not married
  • The accuser or victim had not given consent to sexual intercourse
  • You accomplished the act of sexual intercourse using fear, fraud or force

Note that the victim of rape must be alive at the time of the incident for you as the accused to be convicted for the crime.

A conviction for rape could subject you to felony probation or incarceration in state prison for up to eight years. You will, however, get three years in the initial sentence if the victim of rape suffered great bodily injury. Where the victim of rape is a minor 18 years or younger, your period of incarceration will increase to no more than eleven years. If the minor is 14 years or younger, the sentence could increase up to thirteen years. People convicted of rape should also register as sex offenders for a lifetime.

The above penalties are preventable if you apply the right defenses against the rape charges. Some of the defenses include asserting that the victim had consented to the act. You could also argue that although you engaged in sexual conduct with the victim, there was no sexual intercourse. In case the victim had motives such as anger, revenge, or jealousy, you could assert that he or she is lying or falsely accusing you of the offense.

  1. Sexual Battery

According to PC 243.4, sexual battery occurs when you touch another person's intimate parts without consent for arousal, sexual gratification, or abuse. Unlike PC 289 that requires sexual penetration with a foreign object, sexual battery doesn’t require any penetration. You should also understand that you can be charged with sexual assault even if you are in a sexual relationship with the victim.

Apart from sexual assault addressing minor issues of unlawful touching, it also deals with aggravated cases. Sexual assault cases become aggravated if:

  • You or someone else restrains the victim during the commission of the sexual assault.
  • The victim is institutionalized for treatment or has a mental disability.
  • The victim is unaware of the nature of the act because you fraudulently claimed the touching was for medical reasons.
  • Make the victim masturbate or touch your intimate part.

Note that if a sexual assault occurs under the last scenario, you might think that you are not guilty of the crime because you didn’t touch the victim. However, forcing the victim to touch your intimate parts is also considered sexual assault.

The sex crime of sexual assault can be charged as a felony or a misdemeanor.  It is a felony if any of the aggravating factors listed above are present. If you are sentenced under a misdemeanor sexual assault, you will spend a minimum of six months and a maximum of twelve months based on the nature of the arrest. Additionally, you will be required to pay a fine of 2,000 dollars or three thousand dollars if the victim is an employee. The judge might also decide to impose informal probation for five years. The probation comes with the conditions that you take part in community service and complete a batterer’s education program.

A felony conviction, on the other hand, carries the following penalties:

  • Felony probation
  • Two, three, or four years in prison - The sentence increases to between three to five years in prison if the victim of sexual assault suffers great bodily injuries.

If you get a sentence for a misdemeanor, you will have to register as a sex offender for not less than ten years. A felony conviction, on the other hand, might have you register as a sex offender for a lifetime.

Asserting that the victim has falsely accused you or you had consent from the victim can help prevent the penalties.

Find a Criminal Attorney Near Me

In the event of forcible sexual penetration allegations, we invite you to contact California Criminal Lawyer Group at 408-622-0204. Our sex crimes attorneys will evaluate your case and advise you appropriately.