Sex with an Inmate

Penal Code 289.6 PC - Sex with an Inmate in California

Under California law, it is a crime for any detention center staff member, contractor, or volunteer to engage in sexual contact with an inmate—even if the sex is consensual.

This law is embodied in California Penal Code 289.6 PC. Therefore, if you are charged with this crime and convicted, depending on the circumstances of the case and the specific activity involved, you could face up to three years in state prison.

Penal Code 289.6 PC makes it a crime for certain people to have sexual activity with an inmate.

Simply put, this statute prohibits detention facility staff and contractors from engaging in sexual activity with an inmate, including prison guards, health facility staff, and any California Department of Corrections and Rehabilitation employees.

PC 289.6 says, “(a) (1) An employee or officer of a public entity health facility, or an employee, officer, or agent of a private person or entity that provides a health facility or staff for a health facility under contract with a public entity, who engages in sexual activity with a consenting adult who is confined in a health facility is guilty of a public offense.”

“Sexual activity” under PC 289.6 includes sexual intercourse, oral copulation, sodomy, sexual penetration with a foreign object, and touching another person's sexual organs or female breasts for sexual gratification.

It also includes touching themselves in the presence of another person for sexual gratification. The related crimes include Penal Code 261 PC rape, Penal Code 243.4 PC sexual battery, and Penal Code 4573.5 PC bringing contraband into a jail. Let's review this state law further below.

What Does the Law Say?

The text of PC 289.6 covers a broad range of situations and circumstances in which sex with an inmate is counted as a criminal act. Let's look more closely at this law.

The term "inmate" refers to anyone in custody in any part of California's detention system. These include the following:

• Inmates held in jail or prison;
• People detained in a police station or at court, including those arrested but not yet booked;
• Inmates at juvenile facilities;
• Inmates being transported;
• People who are confined in health facilities, including arrestees being guarded in a hospital or mental health facilities where people are involuntarily confined;
• Parolees.

The term "detention facility" refers to virtually any situation in which the state detains someone. These include the following:

• Correctional facilities, including jails, prisons, camps, juvenile detention facilities, etc.
• Any private building or facility where inmates are being confined;
• Any vehicle used for transporting people in confinement, including those who are under arrest but not yet booked as inmates;
• Police station interrogation rooms;
• Court holding cells;
• Any health facility in which the patient is being confined involuntarily.

Under the law, it is a crime for any of the following people to engage in sexual contact with an inmate:

• Police officers;
• Jail or prison guards, including both public and private facilities;
• Contractors or volunteers at detention facilities, both public and private;
• Any person employed or under contract with the Department of Corrections
• Parole officers;
• Healthcare staff or contractors.

Under the law, "sexual activity" covers almost every range of sexual action or contact, including intercourse, any form of sexual penetration (including foreign objects), sodomy, oral sex, or sexual touching of the inmate or oneself in the inmate's presence. PC 289.6 does NOT apply to any of the following situations:

• Approved conjugal visits between consenting adults;
• Contact or penetration made during a lawful search; or
• Legitimate medical examinations or treatments.

What Are Some Examples?

EXAMPLE 1: Angela is a parole officer who engages in a sexual relationship with one of her parolees. Angela can be charged under PC 289.6 because the parolee is legally considered an inmate.

EXAMPLE 2: Henry, a prison guard, shoves the end of his billy club into the anus of an inmate as punishment for insubordination. Henry can be charged under PC 289.6 for sexually penetrating the inmate with a foreign object.

EXAMPLE 3: Danielle, a physician at a hospital, conducts a genital and rectal exam on an inmate who has been brought in for treatment. Danielle is NOT guilty under PC 289.6 because she was conducting a legitimate examination.

What Are the Penalties for PC 289.6?

Violations of PC 289.6 can be charged either as misdemeanors or felonies based on factors such as the type of contact and the circumstances in which it occurred. PC 289.6 is charged as a misdemeanor if:

• The contact occurred in a health facility; or
• The sexual contact did not involve penetration;
• If convicted of a misdemeanor, you could face up to one year in jail and a fine of up to $1000.

PC 289.6 is charged as a felony if:

• You have any prior convictions under PC 289.6; OR
• The sexual contact involved penetration, including oral copulation); AND
• The sexual contact occurred in any detention facility (i.e., not a healthcare environment) or while the inmate was under the supervision of a corrections officer;
• If convicted of a felony, you face up to 3 years in jail or prison and a fine of up to $10,000.

In addition, the law requires that any Department of Corrections employee convicted of felony sex with an inmate be terminated without being eligible for re-hire.

What Are the Penalties for PC 289.6?

If you're charged with a crime under PC 289.6, typically, the two most commonly used strategies used by a California criminal defense lawyer are discussed below.

Contact our law firm for legal advice.

Perhaps we can argue that you have been falsely accused, to which your attorney can present evidence.

Perhaps we can argue that the activity did not qualify as a crime, such as an approved conjugal visit, medical exam, etc.

Note that inmate consent is not a valid defense to this crime. While most consensual sex is not illegal in California, PC 289.6 make an exception to this rule because the subordinate relationship between the inmate and the supervisor makes true consent questionable at best.

Perhaps we can negotiate with the prosecutor for reduced charges or persuade them not to file formal criminal charges in the first place, called a “DA reject.”

You can contact our law firm by phone or use the contact form for a case evaluation. Eisner Gorin LLP is located in Los Angeles, California.