The California law PC 289 defines the crime of forcible sexual penetration as penetrating the anus or vagina of another person using a foreign or external object. For the charges to hold, you should have acted against the consent of the victim. You should also carry out the crime through force or by threats of force. A violation, according to PC 289, is a serious crime with severe consequences. If the prosecutor accuses you of this crime, The LA Criminal Defense Law Firm can counsel you regarding your legal options.

Elements of Forcible Sexual Penetration

The prosecutor cannot accuse you of committing a sex crime according to PC 289 if he/she does not have ample evidence against you.to accuse you of this crime, the prosecutor must prove some aspects of the offense:

• The prosecutor must show that you engaged sexual penetration on another person without the person’s permission.

• It must also be apparent that you used a foreign or external object, device, element, or any other unknown object to perform the forcible penetration.

• The prosecutor must also show that the victim had not consented to your actions.

• You must have engaged in the violation by using fear, threats, menace, future threats of bodily harm, or unlawful bodily injury.

You could be guilty of the offense of sexual penetration using a foreign or external object, even if the penetration was slight. The prosecutor only needs to show that you acted on purpose, with the aim of arousal, gratification, or to subject the victim to sexual abuse. The penetration should have occurred at the genital or the anal passage of another person.

Similar charges might apply if you make a victim penetrate the anal passage or genital organ of another person or yourself. You could also be guilty according to PC 289 if you cause the victim to penetrate his/her genital or oral opening using a foreign or external object.

A Foreign or External Object

A foreign item/object refers to any object, including a body part, like a finger as long as the object is not a sexual body part. If the defendant penetrates a victim using a sexual body part, the crime will qualify as rape under California PC 261. For you to face charges according to PC 289, the penetration must have involved a foreign or external object and not a sexual body part.

You could face charges according to PC 289 if you make a victim penetrate his/her genital or anal opening using his/her finger. Similar charges would also apply if you make a victim penetrate the anal or genital opening of a third party using his/her finger. It is important to note that if the victim is a woman, actual vaginal penetration does not have to occur for the charges to apply. If you penetrate the outer vaginal lips, you could be guilty of the offense.

To satisfy the elements of the crime, you should have the motive of sexual arousal, gratification, or sexually abuse the victim while committing the crime. Penetrating the victim’s genital or anal openings for sexual abuse means that you intended to inflict injury, discomfort, or pain on the victim.

Without Permission or Consent

Just like in the case of other sex crimes, according to California law, lack of victim’s consent is an important element of the violation of PC 289. You could only be guilty if you went against the will of the victim. Lack of victim’s consent implies that the victim did not allow you to penetrate his or her genital or anal opening with an external object. A victim would be in consent if he/she acted out of a free will and without coercion. For the victim to consent to your actions, he/she must have understood the implication of your actions.

Even if you and the victim were dating or in a romantic relationship, it is not adequate proof of consent for forcible sexual penetration. You can’t assume that the victim has consented to sexual penetration because the victim is or was your spouse. You can’t claim that the victim had consented to your actions even when a victim requests you to use a condom while penetrating him/her with an external object.

Use of Force or Fear

For you to be guilty of sexual penetration using a foreign or external object, you must have employed force or fear while penetrating the victim. The use of force means that you applied physical force on the victim, and the force was enough to exceed the victim’s free will. You could also carry out the crime through violence. For instance, you could have beaten the victim before committing the crime.

You could also have subjected the victim to fear or duress while engaging in the crime. By using a direct or implied threat of force, you could make a victim commit an action that a victim would not commit if not under duress.

You could be guilty of using a threat of bodily injury while committing the crime of sexual penetration. You could also be guilty according to PC 289 if, while engaging in the crime, you had kidnapped or restrained the victim.

Violation of PC 289(a)(1)(B)

You could face charges according to PC 289(a)(1)(B) if you commit a sex crime according to PC 289 on a victim who is below 14 years at the time of the offense. If you commit a violation according to PC 289(a)(1)(B), you could be guilty of imprisonment in a state prison in California. You could stay for eight, ten, or twelve years in prison. You have to serve 85% of the sentence in state prison and not in county jail. For this violation, you must register as a tier III sex offender for a minimum of thirty years. Committing a sex crime according to PC 289 of, a person below 14 years is a violent felony, according to California law. Therefore, you will get a strike on your criminal record according to the California Three Strikes law.

Violation of PC 289(a)(1)(C)

You could be guilty according to PC 289(a)(1)(C) if you commit a sex crime according to PC 289 on, a victim who is between 14 and 17 years at the commission of the offense. For a crime, according to PC 289(a)(1)(C), you could be subject to imprisonment in a state prison in California for six, eight, or ten years. You have to serve at least 85% of this sentence in state prison and not in county jail. You also must register as a tier III sex offender for thirty years. A violation, according to PC 289(a)(1)(C), is a violent felony, according to California law. Therefore, according to the Three Strikes law in California, you will get a strike on your criminal record.

Violation of PC 289(b)/PC 289(d)/PC 289(e)/PC 289(g)

You could violate PC 289(b) if you commit a sex crime according to PC 289 on an incompetent victim. If the victim is unconscious, you could be guilty, according to PC 289(d). You would be guilty, according to PC 289(e), if the victim was intoxicated at the time of the commission of the offense. You could violate PC 289(g) if you make the victim believe that you are a public official. If the victim thinks that you are a public official, the victim might give in to your demands in the fear that you might arrest, deport, or incarcerate him/her for failing to cooperate.

Violation of PC 289(h)

You could violate PC 289(h) according to California law if you commit a sex crime according to PC 289 on, a person who is below 18 years. Charges, according to PC 289(h) apply if you did not use force or fear while committing the crime. The sentencing for this crime ranges from probation to imprisonment in a state prison in California.

A violation, according to PC 289(h) could be either a misdemeanor or a felony offense. If the prosecutor accuses you of a misdemeanor, penalties include jail time of up to one year in a county jail in California. If the prosecutor accuses you of a felony, you might face imprisonment in state prison for sixteen months, two years, or three years.

For a conviction, according to PC 289(h), you have to serve at least 50% of your actual sentencing before the possibility of parole. You must register as a tier I sex offender for ten years. The majority of sex crimes are felonies, according to California law. A violation, according to PC 289(h), is a rare occurrence where the crime is a wobbler. The prosecutor has the discretion to charge the crime as a felony or misdemeanor depending on your record and the facts of your case.

Unconscious Person

It is a crime, according to California law, to take part in sexual penetration using a foreign/external object on an unconscious person. While unconscious, the victim is not conscious or aware of the implication of the action. While engaging in the crime, you should have been conscious that the person was unconscious and unable to oppose your actions.

For this section of the law to hold/apply, the victim needs not to be unconscious. The person might have been unconscious or asleep and, therefore, unaware of the implication of your actions. You could also have lied, tricked the victim, or concealed some information from the victim to make him/her unaware of the implication of your actions.

Intoxicated Person

It is a criminal offense to commit a sex crime, according to PC 289, on an intoxicated individual. A person is intoxicated if he/she is incapable of resisting your actions due to intoxication with drugs, alcohol, or any other intoxicating substance. While engaging in the crime, you should have been aware that the person was under the influence and that he/she could not resist.

There is an intense criticism of this section of the law because the majority of sexual encounters occur when parties involved are intoxicated. However, the law considers a person intoxicated if he/she is unable to know the likely consequences of your actions. A person is also intoxicated if he/she does not understand the physical or moral status of sexual penetration.

Disabled Person

You could be guilty of sexual penetration according to PC 289, even if you do not use force or fear while committing the crime, as long as the victim is disabled. The law considers a person to be disabled if he/she has development, physical, or mental disorder. The disorder should be of such a nature that it prevents the victim from understanding the implication of your actions and the consequences.

While engaging in the crime, you should have been aware that the victim is disabled. Therefore, you should have known that the victim could not resist your actions.

Consequences of Sexual Penetration Using a Foreign or External Object

According to California law, a violation under PC 249 is a felony. The likely consequences for the offense include formal probation. You could only get probation if you engaged in sexual penetration on a disabled individual, without using force or fear. Probation is not available if you committed the sexual penetration using force or fear, or if the victim was intoxicated or unconscious while engaging in the crime.

Crime, according to PC 289, could attract imprisonment of 3, 6, or 8 years in California state prison. The court could also recommend a fine of not more than $10,000.

Sex Offender Registration

Crime, according to PC 289, is a violent felony. Therefore, you could be subject to registration as a sex offender. You could register as a tier II, III, or I depending on the implication of the violation and how old the victim is. You must register with the police in your county or city of your residence. You must renew the sex offender registration every year. The renewal should be within five working days from your birth date. Whenever you relocate, you must renew the sex registration.

Common Legal Defenses for Forcible Sexual Penetration

Do not despair if the prosecutor accuses you of forcible sexual penetration. With the assistance of a competent attorney, you could be able to oppose the accusations in court. With aggressive legal representation, the prosecutor might be willing to reduce your charges. If your attorney can question the prosecutor's evidence, the prosecutor might even be willing to drop your charges. The common legal defenses for forcible sexual penetration are:

Insufficient Evidence

You could fight charges according to PC 289 if the prosecutor does not have ample evidence against you. It is common for the prosecutors and arresting officers to be overzealous and to accuse people of committing a crime, even with inadequate evidence. The prosecutor must not accuse you of sexual penetration if he/she is not able to prove all the elements of the offense. The prosecutor must be able to show that you engaged in the crime for sexual arousal, gratification, or to subject the victim to sexual abuse. The prosecutor must also prove that you used force or fear while committing the crime. The prosecutor has a heavy burden of proof. Your attorney can take advantage of lapses in the prosecutor’s evidence.

Victim’s Consent

One of the important elements of sexual penetration using a foreign or external object is going against the will of the victim. With the victim’s consent to your actions, you can’t be guilty of the offense. In most sex crimes, there is always an ambiguity regarding the victim’s agreement. It can be hard for the prosecutor to prove a victim’s lack of agreement without a doubt. If the prosecutor is unable to prove beyond a doubt that you had the victim’s consent, you can’t be guilty of sexual penetration.

Reasonable Belief in Consent

You would not be guilty of the offense of sexual penetration using a foreign object if you believed that the victim was in consent to your actions. Therefore, you could fight accusations according to PC 289 if you believed that the victim had consented to your actions. However, this defense must be convincing, and you should not have used force or fear while committing the crime. This defense might apply if the victim is your sexual partner like a spouse or a person with whom you have a romantic relationship. Reasonable belief in consent is among the most applicable defenses for the crime.

False Accusation

A person could accuse you of the sex crime, according to PC 289, even if you did not commit the crime. If you did not commit the crime, your attorney could help you to fight the charges. Your former or current sexual partner could accuse you falsely of this crime. The common motivations for false allegations are anger, jealousy, and revenge.

At times, your accuser could be your child, parent, friend, or a romantic or business rival. Any person who has a grudge against you could accuse you falsely of a crime, according to PC 289. With the assistance of your attorney, you could prove that there is no way you could have engaged in the offense.

Violation of Your Rights

You could fight sexual penetration charges if you feel that the arresting officer violated your rights. For instance, the police could violate your Miranda rights at the time of your arrest. You could also fight the charges if the police subjected you to illegal search and seizure at the time of your arrest. This defense will not mean that you are not guilty of the offense. It is a technical defense aimed at proving that the police or the prosecutor obtained the evidence against you illegally.

When the police arrest you, they should inform you about your rights before they begin to question you. The police should read out your rights, including the right to remain silent. If the police fail to inform you of your rights at the time of detention and questioning, the court might consider it a violation of your rights. However, it is crucial to know that the police do not have an obligation to read your Miranda rights to you. The police can arrest you and place you in custody. The police should only read the rights if they intend to question you.

Coerced Confession

You could have confessed to crime due to overbearing police conduct. You could fight the charges by asserting that if it were not for the outrageous police conduct, you would not have confessed to the crime. If you feel that the police coerced you to confess to a crime, you could fight the charges with the assistance of your attorney. The police might also make you believe that if you confess to a crime, you will not go to jail. You should never have to face the consequences of an offense that you didn’t commit.

Related Offenses

Certain crimes are almost similar to the crime of forcible sexual penetration. The prosecutor can accuse you of the related offenses alongside or instead of a violation, according to PC 289. Some of the related offenses are:

Oral copulation Using Fear or Force

The California law PC 288a outlines the crime of oral copulation using fear or force. This crime is almost the same with a crime, according to PC 289, except that it does not involve penetration but oral sexual activities. In most cases, the people who commit a sex crime, according to PC 289, could also perform oral copulation using fear or force. Therefore, most defendants face both PC 288a and PC 289 simultaneously. A violation under PC 288a is a felony, according to California law. The penalties include imprisonment in state prison. The imprisonment period will be longer if the victim is a minor.

Rape

The California law PC 261 outlines the crime of rape. You could be guilty of rape if you take part in non-consensual intercourse with another person using force, threats, or fraud. The legal definition of rape is almost the same as that of forcible sexual penetration. However, rape does not involve using a foreign or external object but a sexual body part. Rape is a felony crime, according to California law, with a potential penalty of imprisonment in a California state prison.

The crime of Sexual battery under PC 243.4 is related to that of sexual penetration, according to PC 289. This crime involves touching another person's intimate organs without the person's consent.

Find a Criminal Defense Attorney Near Me

A crime PC 289 is a serious violation of detrimental consequences. You should not attempt to fight a conviction according to PC 289 without the assistance of a competent attorney. For the best legal help, contact The LA Criminal Defense Law Firm at 310-935-1675 and talk to one of our attorneys.