You will face prosecution under Penal Code 289 if you engage in forcible sexual penetration of another individual. Per this statute, forcible sexual penetration occurs when the offender sexually penetrates another person's anus or genitalia with a foreign device without the victim's consent. PC 289 violations are grave offenses, especially because of the risk to the victim’s life. A conviction results in significant penalties. The Santa Ana team of defense attorneys at California Criminal Lawyer Group explains the crime, the elements prosecutors must prove, the defenses you can raise, and the likely penalties if convicted below.

California’s Penal Code 289

Penal Code 289 addresses several aspects of forcible sexual penetration. More specifically, it addresses crimes against various victims.

  1. Forcible Sexual Penetration by Fear or Force

You are only guilty of forcible sexual penetration by fear or force if prosecutors prove the following factors to establish the commission of a crime:

  • Sexual penetration — You must have penetrated the victim's anus or genitalia with a foreign device.
  • Lack of consent — The victim did not agree to the sexual penetration, either because they:
  1. could not permit it due to intoxication, unconsciousness, physical force or
  2. they explicitly refused to participate in sexual activity.
  • Fear or force — You use physical fear or force to coerce the victim into participating in sexual activity.
  • Knowledge and intent — You knew or should have understood that the victim did not agree to the sexual activity and intended to commit the act of sexual penetration with a foreign device without consent.

Legal Definition of Sexual Penetration

Sexual penetration involves penetration of the victim’s anal or genital opening by a foreign device, no matter how slight. Foreign devices for purposes of the law include a body part other than a sexual organ like a finger, an instrument, or any other foreign device. The perpetrator, victim, or a third party can commit the act of penetration. A jury will find you guilty of a PC 289 violation if you committed the act or caused the victim or a third party to commit the act.

Note: Sexual penetration does not require ejaculation or even orgasm to occur. The mere penetration with a foreign device is enough to satisfy the definition of sexual penetration under California law. Further, sexual organ penetration without consent amounts to rape, a PC 269 violation.

Intent is also crucial in a PC 289 violation case. Ideally, if you use force, the intent is sexual abuse. That is penetration aiming to inflict pain, discomfort, or injury. However, if the aim was sexual arousal or gratification, the intent is met, and you will face legal action for violating PC 289.

Lack of Consent

Prosecutors must establish that the victim did not consent to the act. Generally, fear or force will likely overcome an individual’s will to agree to any action. The state will effortlessly prove the victim’s lack of consent by proving you used fear or force.

Additionally, the victim should have understood the nature of the sexual act perpetrated against them. He/she must have known they were engaging in sexual activity. Further, the victim must have had the capacity to comprehend the nature of the act. Thus, the victim's failure to consent to the deed is evident in this context. However, there are instances where this awareness is hindered, for example, if the victim is intoxicated. The state will argue that the victim was too drunk to comprehend the nature of the deed. Thus, he/she could not have consented.

 Note: The following assertions will not sufficiently prove consent in a PC 289 violation case.

  • You were dating at the time of the incident or had dated the victim.
  • You requested the victim to use protection.
  • You were married to the victim at the time of the incident or were married to the victim.

Forcible Penetration

Forcible penetration only occurs in any of the following ways:

  • You used force — Physical force or violence used to overcome the victim's will and accomplish the act of sexual penetration. This could comprise physical conduct like pushing, pulling, hitting, or restraining the victim. Further, employing weapons or other items to frighten or coerce the victim amounts to using force.
  • You used menace — A threat of harm or injury that intends to compel the victim to engage in sexual activity against their will.
  • The victim was under duress — A situation where the victim is compelled to engage in sexual activity against their will due to the threat of harm or injury to themselves or others.
  • You threatened the victim with immediate and unlawful physical harm.
  • You threatened to retaliate if the victim failed to yield to your demands — You could achieve this by kidnapping the victim and inflicting pain or serious bodily injury to the victim. Alternatively, you could threaten the victim’s life by restraining or confining the victim or threatening to kill the victim or a loved one.

  1. Forcible Sexual Penetration of an Intoxicated Individual

A jury will find you guilty of a PC 289 violation if the victim was intoxicated. Prosecutors must establish the following as accurate:

  • The alleged victim could not resist since he/she was influenced by alcohol, drugs, or other intoxicating substances.
  • You knew or should have reasonably known that the victim could not agree because of their intoxicated state.

It becomes very challenging to determine whether a defendant is guilty of the crime since most sexual encounters occur when individuals are intoxicated. However, for purposes of this law, an individual is too drunk to consent if he/she does not comprehend and is unable to weigh:

  • The moral or physical nature of the act and/or
  • The implication of engaging in the act.

  1. Forcible Sexual Penetration of a Disabled Individual

A jury will find you guilty of a PC 289 violation if you do not use fear or force on an individual when engaging in forcible penetration with a foreign device but direct the action to a disabled individual. A jury will likely convict:

  • If your victim has a physical, mental, or developmental disorder, which prevents him/her from comprehending the nature of the deed, and
  • You knew or should have reasonably known the victim’s disability or disorder that would stop him/her from consenting to the act.

  1. Forcible Sexual Penetration of an Unconscious Individual

If you engage in forcible sexual penetration of an unconscious person, a jury is likely to convict simply because the individual cannot consent, resist, or comprehend the nature of the act. Unconsciousness for legal reasons does not necessarily mean the victim was:

  • Unaware of the occurrence of the act.
  • Asleep or unconscious.
  • Unaware of the crucial aspects of the act because you concealed material information, lied to or tricked him/her.

  1. Forcible Sexual Penetration of a Minor

Legally, minors are individuals less than 18 years old. However, PC 289 mainly focuses on 14 years as the median age for minors. You will receive harsher penalties if the child is under 14 years old than penalties issued when victims are 14 years old and older. Children under 14 are especially vulnerable.

A jury will likely convict you if the child was the victim in the PC 289 violation case.

Defenses You Can Raise to Challenge the Forcible Sexual Penetration Charge

A PC 289 violation is a grave crime. Being charged with an offense can be difficult, and giving up hope of defending yourself is easy. However, with the help of an experienced attorney, you can fight the allegations. Your attorney will help secure the best legal outcome for you based on the facts of your case. Here is a look at some defenses he/she can raise to challenge the prosecution’s case.

  1. The Victim Consented to the Act

Under the "consent" defense, you can establish that the alleged victim voluntarily and knowingly consented to the sexual act. However, it is crucial to understand that consent is not a defense if the victim cannot agree because of being under the influence of drugs or alcohol, being mentally or physically incapacitated, or being coerced or threatened into submission.

Proving that the alleged victim in a PC 289 violation case consented to the act can be challenging, as consent often comes down to the victim's word against the accused's. You can nonetheless prove consent through the following avenues:

  • Direct evidence — This will include any testimony or physical evidence that supports your claim that the alleged victim voluntarily and knowingly consented to the sexual act. For example, if any witnesses observed your interaction with the victim, their testimony could help establish the defense of consent.
  • Circumstantial evidence — Circumstantial evidence suggests the victim consented to the sexual act, even if there is no direct evidence of consent. You can use text messages, emails, or other communication between you and the alleged victim, suggesting that the victim consented to the sexual act.

Note: Prior sexual history does not mean the victim consented to the act. Using prior sexual history as evidence can be controversial. Courts will not allow it if it is deemed irrelevant or unfairly prejudicial to the victim.

  1. No Sexual Penetration

PC 289 requires that the prosecution show that you engaged in non-consensual sexual penetration of the alleged victim. You can thus argue that there was no sexual penetration. Here are some ways that your attorney can present the “no sexual penetration” defense:

  • Lack of evidence — Your attorney could argue that no physical or forensic evidence supports the allegation that sexual penetration occurred. For example, no DNA evidence could link you to the alleged victim. On the other hand, he/she could argue there is no physical evidence of sexual activity.
  • Alternative explanations — Your attorney could present alternative explanations for any physical evidence in the case. He/she could argue that the evidence does not necessarily prove that sexual penetration occurred. For example, your attorney could argue that any physical injuries suffered by the alleged victim were not caused by sexual activity but by some other cause.

If this defense is successful, your charges could be reduced to sexual assault or sexual battery. Both crimes impose less harsh penalties if convicted.

  1. Reasonable Belief that the Victim Consented

You could also assert that you reasonably believed the victim consented. It is worth pointing out that a reasonable belief differs from an actual belief of consent. A reasonable person in the same situation would hold this belief. On the other hand, actual belief refers to the specific belief held by the accused at the time of the incident, regardless of whether that belief was objectively reasonable.

While asserting this defense, you must demonstrate that you subjectively believed the victim voluntarily and knowingly consented to the sexual act.

Proving reasonable belief in a forcible sexual penetration case can be challenging. It requires demonstrating that you believed, at the time of the sexual act, that the victim voluntarily and knowingly consented to the act. Further, you must show that the belief was objectively reasonable. Your attorney could use the following approaches while asserting this defense:

  • Testimony — You can testify and provide details about the interaction with the victim. Thus, you should provide any communication or behavior that led you to believe the victim was consenting.
  • Witness testimony — Witnesses present during the interaction between you and the victim could testify supporting your reasonable belief. Witnesses could attest to your behavior and interaction with the alleged victim as proof of your belief.
  • Physical evidence — Your attorney can introduce physical evidence, including video or audio recordings showing your interaction with the alleged victim. This will show the jury how you reasonably concluded the alleged victim agreed to the act.
  • Expert testimony — Behavioral experts come in handy too. Their knowledge and understanding of human behavior could offer more insight into the case. Thus helping establish a reasonable belief.

  1. False Accusations

Cases of false accusations are not uncommon in PC 289 violation cases. Alleged victims could press charges as an act of jealousy, hate, retaliation, or for any other reason. In these cases, defendants could assert their innocence since they were falsely accused of violating PC 289.

Defense attorneys use various strategies to prove to the jury that their clients were falsely accused. They include:

  • The alleged victim’s motive — Your attorney could attempt to establish a reason for the alleged victim to make false accusations. For example, they could argue that the alleged victim is seeking revenge against you. Alternatively, the victim could have a personal vendetta or financial gain to be made from making false accusations.
  • Prior false allegations — Your attorney could rely on the alleged victim’s pattern of behavior. He/she could present to the jury prior false allegations or inconsistencies in their testimony. This approach aims at suggesting that the current accusations are also dishonest.
  • Inconsistencies in the victim's testimony — Your attorney could also highlight discrepancies or contradictions in the alleged victim's testimony. These inconsistencies undermine the credibility of the victim's accusations.
  • Physical evidence — Your attorney could present evidence contradicting the alleged victim's accusations. For example, he/she could present evidence that you were not present at the location where the alleged offense occurred. Alternatively, he/she could assert that there was no physical evidence of sexual activity.

Penalties If Convicted of a PC 289 Violation

A PC 289 violation is a felony. The penalties you could receive upon conviction vary depending on the particular circumstances of your case.

  • If you are convicted of forcible sexual penetration using force, fear, menace, coercion, violence, or a threat of violence, the courts will sentence you to 3, 6, or 8 years in prison.
  • If you are convicted of forcible sexual penetration on a minor below 14, the courts will sentence you to 8, 10, or 12 years in prison.
  • If you are convicted of forcible sexual penetration of a minor 14 years or older, the courts will sentence you to 6, 8, or 10 years in prison.

Additionally, in all the above scenarios, the courts will impose a maximum fine of $10,000.

Sex Offender Registration Requirement

A conviction for a PC 289 violation will result in a sex offender registration according to Penal Code 290, Megan’s Law. The time a person should register as a sex offender depends on the specific offense and the circumstances of the offender’s case.

Megan's Law establishes three registration requirement tiers based on the offense's seriousness.

  • The first tier applies to offenders convicted of certain misdemeanors. These offenders are typically required to register for ten years. For PC 289 violations, you will be mandated to register as a Tier I offender if convicted in the following circumstances:
  1. The victim has a mental disorder, physical or developmental disability, which is a violation of PC 289(c).
  2. If you concealed material information, pretended, or deceived the victim, which is a violation of PC 289(f).
  3. You threatened to use your authority as a public official to commit the act, which is a violation of PC 289(g).
  • The second tier applies to offenders convicted of more serious misdemeanors or certain low-level felonies. These offenders are typically required to register for 20 years. You would be mandated to register as a Tier 2 offender if you threaten to retaliate against the victim’s family or the victim. A judge could also impose a Tier 2 sex offender registration if the victim has a mental disorder or physical or developmental disability. His/her choice will be based on their assessment of your case.
  • The third tier applies to offenders convicted of the gravest offenses. These offenders are typically required to register for life. A Tier 3 registration is likely if you used coercion or force or when the victim was below 14 years, and you were ten years his//her senior at the time of the incident. Further, you become a Tier 3 sex offender if the victim was unconscious or too intoxicated to consent at the time of the incident.

According to the Sex Registration Act, all convicted sex offenders living in California must register with the local police department. This registration is renewable:

  • Annually and within five working days of your birthday, and
  • Every time you move into a new residence.

Crimes Similar to Forcible Sexual Penetration

  1. Sexual Assault

Penal Code 243.4 defines sexual assault as committing an unwanted sexual act through force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the victim or another person. This crime is also commonly known as sexual battery.

The act that constitutes sexual assault may include any non-consensual touching of an intimate part of another person's body, including the genitals, buttocks, or breasts. The touching does not need to be done directly. It can also be done through clothing.

There are several factors that prosecutors must prove to secure a conviction for sexual assault under Penal Code 243.4. These include:

  • The accused touched the intimate part of the alleged victim's body.
  • The touching was done with the intent to cause sexual arousal, sexual gratification, or sexual abuse.
  • The touching was done against the will of the alleged victim.
  • The touching was done through force, violence, duress, menace, or fear of immediate and unlawful physical injury to the victim or another person.

The accused could face severe criminal penalties if the prosecution can prove these elements beyond a reasonable doubt.

Misdemeanor sexual battery convictions result in jail sentences of either:

  • Six months or one year, based on the circumstances, and
  • A maximum fine of $2,000 (or up to $3,000 if the alleged victim was the defendant’s employee.

Felony convictions, on the other hand, result in a prison sentence of two, three, or four years and a fine of up to $10,000.

Contact an Experienced Criminal Defense Attorney

Forcible sexual penetration is a grave offense. The consequences are significant and could negatively impact your life. Thus, you need an experienced team of legal representation from Santa Ana criminal defense attorneys in the case. This is the best way to fight the charges. The California Criminal Lawyer Group is ready to help you. Book a free case evaluation today at 714-844-4151.