Penal Code 289 PC - Forcible Sexual Penetration with a Foreign Object
California Penal Code 289 PC makes it a felony crime to cause forced sexual penetration with a foreign object upon anyone against their will.
This type of sex crime is aggressively prosecuted, especially in situations where a victim cannot give sexual consent due to being unconscious, too intoxicated, having a mental disorder or physical disability, or they were a minor.
This crime is also called “sexual penetration by force or fear.” Typically, this crime occurs when someone commits rape without using their penis.
Often, a defendant is accused of placing an object into the victim's vagina or rectum against their will or when the victim can't give legal consent.
PC 289 (a)(1) says, “Any person who commits an act of sexual penetration when the act is accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for three, six, or eight years.”
Prosecutors can file Penal Code 243.4 sexual battery and Penal Code 289 foreign-object sexual assault in the same case because the sexual battery is a lesser-included offense.
This is a serious sex crime that carries significant prison time, fines, and a lifetime requirement to register as a sex offender. Let's review this state law further below.
What Does the Law Say?
PC 289 defines what constitutes forcible penetration with a foreign object.
The law says, “Sexual penetration is the act of causing the penetration, however slight, of the genital or anal opening of any person or causing another person to so penetrate the defendant's or another person's genital or anal opening for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object.”
A “foreign object” is any physical object and body part other than a sexual organ, but it also includes any substance or instrument. Notably, by definition, it also consists of a finger, hand, toe, or tongue. Forcible sexual penetration” can include any of the following:
- Physically forcing a foreign object into someone's vagina or anus;
- Coercing the victim to penetrate someone else with a foreign object;
- Coercive penetration by threatening harm if they do not submit;
- Coercive penetration by posing as a public official, threats to arrest, incarcerate, or deport the victim if the victim does not submit;
- Sexual penetration by posing as someone the victim knows to elicit consent;
- Sexual penetration of someone unconscious or too intoxicated to consent;
- Sexual penetration of someone who is disabled or mentally or emotionally incapable of understanding or giving consent.
It's a misdemeanor to participate in sexual penetration with someone under 18, even if there is consent. If they are under 16, it's a felony.
Penal Code 289(a)(2) defines the crime of a threat of retaliation against someone unless they consent. A defendant does not need to use force or fear immediate injury if, instead, they use threats of future harm.
Penal Code 289(d) defines the crime of committing the penetration offense against an unconscious person.
What are the Penalties for PC 289?
This is a severe charge, and if you or a loved one is charged with foreign object penetration, you're facing many years in prison, a lifetime of sex registration, and a host of other issues that will affect you or your loved one the rest of their lives.
A conviction for forcible penetration with a foreign object carries fines of up to $10,000 and eight years in state prison. There are enhanced penalties, such as the following:
- If the victim is under 18, the sentence is increased to ten years;
- If the victim is under 14, the sentence is increased to 12 years;
- If the act was consensual with someone under age 18, it carries up to one year in county jail.
Further, a conviction for forcible sexual penetration with a foreign object will require you to register as a sex offender. The Sex Offender Registration Act requires offenders to register with the local police station where they live.
Most PC 289 forced penetration cases require lifetime registration as a Tier-3 offense. However, if it was through threats, the sex registration requirement is usually 20 years for a Tier-2 crime. For a misdemeanor charge, the registration requirement is a minimum of 10 years for a Tier-1 offense unless the judge waives the requirement.
What are the Related Crimes?
- Rape defined under Penal Code 261 PC;
- Oral copulation by force or fear under Penal Code 287 PC;
- Sexual battery under Penal Code 243.4 PC;
- Statutory rape under Penal Code 261.5 PC.
What Are the Defenses for PC 289?
The critical factor making penetration a crime is the issue of consent unless it's a minor. Prosecutors must prove beyond a reasonable doubt victim did not, or could not consent.
A common strategy used by a California criminal defense lawyer is to argue that the alleged victim consented, you reasonably believed it was consensual, or the allegation is false.
Negotiating with the prosecutor for reduced charges or a case dismissal might be possible. Perhaps we can persuade law enforcement and the prosecution from filing formal criminal charges in the first place (DA reject).
The bottom line is that you will want to find the best attorney. So what I have you do is come into my office. We sit down and review your case's facts, details, and circumstances and decide how we will defend you.
Sometimes we'll defend you by fighting the case, doing the preliminary hearing, filing motions, and eventually doing a trial if necessary. Other times we will defend you by negotiating and putting together a mitigation package so that we can convince the prosecutors to give you the best resolution possible.
We will look at what evidence they have, what they can prove, and what they can't. Is there anything we can do to challenge their case? So we'll look at one side, our defense; we'll look at the other, which is the prosecution's case.
If you penetrate another against their will, you will be charged with forcible penetration. You'll be looking at a strike. You'll be looking at a lengthy prison sentence served at 85%. You're going to want to call me. The Hedding Law Firm offers a free case review via phone or contact form. We are located in Los Angeles, California.
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