Forcible Penetration in California
As written, California Penal Code §289 covers a wide array of situations wherein sexual penetration using a foreign object through force or the threat of force is perpetrated on another individual. Specifically, California Penal Code §289(a)(1)(A) states that, “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.”
California Penal Code § 289(k)(1) elaborates on this by defining more clearly what is meant by the phrase “sexual penetration.” To quote § 289(k)(1) states that “sexual penetration” is defined by the State of California to mean, “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.” To make this clearer, California Penal Code § 289(k)(2) clarifies that “foreign object” means, in addition to its usual, colloquial meaning, “any part of the body, except a sexual organ.” However, “unknown object” can also be used, which includes any aforementioned foreign object, substance, instrument, or device, or any part of the body, including a penis, if it is not known what object penetrated the opening.
Furthermore, California Penal Code §§289(a)(1)(B) and (C) cover instances of forced penetration of minors under and over the age of 14 respectively. However, all of the instances described thus far include the element of being perpetrated against the victim’s will. What happens when the penetration is committed in the absence of this element?
California Penal Code §§289(i) addresses this specifically. §289(i) states, “Except as provided in Section 288, any person over 21 years of age who participates in an act of sexual penetration with another person who is under 16 years of age shall be guilty of a felony.” This follows current California laws regarding statutory rape. Much like with California Penal Code §261.5 regarding statutory rape, consent is not a valid legal defense. Furthermore, California Penal Code §261.5(d) says, “Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.” However, unlike with statutory rape involving a person 21 or older and a minor 16 or younger, sexual penetration is only considered a felony, and cannot be considered a misdemeanor.
Similar to a minor’s lack of ability to consent, California Penal Code §289 also covers a wide array of issues involving penetration of those with mental disorders, developmental disabilities, and physical disabilities, as well as those who are intoxicated, anesthetized, or otherwise unconscious and therefore incapable of consenting. There is also a lack of consent if a person who commits an act of sexual penetration does so against the victim’s will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another. Similarly, when the victim submits to the penetration under the belief that the person committing the act is someone known to the victim other than the accused, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief, there is also to be no finding of consent.
Prosecuting California Penal Code §289
To prove that an individual is guilty of this crime, the prosecutor must prove that:
- The defendant committed an act of sexual penetration with another person;
- The penetration was accomplished by using a foreign object, substance, instrument, device, or unknown object;
- The other person did not consent to the act; AND
- The defendant accomplished the act.
As described above, 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. In addition, “foreign object” means any part of the body, except a sexual organ. However, “unknown object” can also be used, which includes any aforementioned foreign object, substance, instrument, or device, or any part of the body, including a penis, if it is not known what object penetrated the opening.
This leaves the issue of consent. In order to consent, a person must act freely and voluntarily and know the nature of the act to which they are consenting. As noted above, consent cannot be given by minors, nor by those with mental disorders, developmental disabilities, and physical disabilities that prevent them from being able to give consent. This also applies to those who are intoxicated, anesthetized, or otherwise unconscious and therefore incapable of consenting. In addition, merely providing evidence that a marriage or other consensual relationship was in existence is not enough by itself to constitute consent. Furthermore, evidence that the other person requested or otherwise communicated that the person in question use a condom or other birth control device is not enough by itself to establish consent.
Defending a Penal Code §289 Charge
A person who forcibly penetrates another with a foreign object without their awareness or consent is committing a heinous and violent crime. Those persons guilty of such a crime should be punished accordingly. However, it is far too common in our current criminal justice system to see people victimized either by an accuser’s fabricated story or by falling victim to an instance of mistaken identity. Therefore, there are several strategies that a skilled criminal defense attorney can and will explore to prove your innocence and either have your case dropped or your charges reduced.
The first approach your criminal defense attorney will take is to make sure that you are not the victim of a false accusation. There are countless examples of jealous ex-girlfriends/boyfriends who fabricate stories out of anger or revenge in order to seek revenge on an individual. In addition, systemic racism and bigotry have lead others to falsely accuse individuals by inventing an act out of whole cloth. Therefore, getting to the truth of the interaction is paramount in any defense and foremost in a criminal defense attorney’s mind.
The second approach your attorney will take is to investigate whether the victim consented to have sexual intercourse. If you and your attorney can prove in court that the victim consented to the penetration, then you cannot be charged with forcible penetration. Similarly, if you can prove that you believed the other person consented to the penetration, then you cannot be charged with forcible penetration either. Therefore, you cannot be found guilty of forcible sexual penetration if you actually and reasonably believed that the other person consented to the act. The burden of proving beyond a reasonable doubt that you did not actually and reasonably believe that the other person consented is on the prosecutor to prove. If this burden has not been met, then you must be found not guilty.
The next approach your criminal defense attorney will explore is to look at the evidence against you. If there is minimal evidence, meaning there are not any medical records, witnesses, or physical evidence then the prosecution will have a very difficult time proving you’re guilty. If this is the case, then your attorney will contact the prosecution and tell them they have a weak case against you and that the case should be dropped. At this point either a plea bargain or case dismissal will take place.
If you or one of your loved ones is facing a forced penetration charge, then it’s imperative that you discuss your case with a skilled criminal defense attorney immediately. Seppi Esfandi is an Expert in Criminal Law and has experience defending all sorts of crimes, including forced penetration.
We Want to Help
If you or a loved one is being charged with Forcible Penetration with a Foreign Object in violation of California Penal Code §289 in California, we invite you to contact us immediately for a free case review. Schedule an appointment to meet with us in person, or feel free to submit an evaluation online and we will get in contact with you ASAP. We can provide a free consultation in our office located in Century City, or by phone.
Our experienced and assiduous attorneys will be sure to fight until the end to reduce or drop your charges completely.
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