In California, it is a felony to cause sexual penetration with a foreign object upon anyone against their will. According to Penal Code 289 PC, it is considered forcible sexual penetration when it is “accomplished against the victim's will using force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.”
Prosecutors aggressively pursue convictions for sexually related crimes, especially those felony-level, when victims can't give consent due to being unconscious, too intoxicated to resist, mental disorder, physical disability, or if they were a minor.
Prosecutors can charge both Penal Code 243.4 sexual battery and Penal Code 289 foreign object sexual assault for the same incident. Sexual battery is a lesser included offense of foreign-object sexual assault.
This sex crime is also known as “sexual penetration by force or fear.” Put simply; it's a felony crime to forcibly penetrate someone with a foreign object using force or fear without their consent. Usually, this offense occurs when someone commits a form of rape without using their penis.
Often, in PC 289 cases, a defendant is accused of placing some object into the victim's vagina or rectum against their will or when the victim can't give legal consent for penetration because they were a minor.
This is a serious sex crime that, if you are convicted, can result in significant prison time, hefty fines, and a lifetime requirement to register as a sex offender. Our Los Angeles criminal defense attorneys will review this law further below.
Overview of Forcible Penetration with a Foreign Object
PC 289 is quite specific in defining what constitutes forcible penetration with a foreign object. “Penetration” refers to entering (even slightly) another person's vagina or anus.
A “foreign object” includes any physical object and any body part other than a sexual organ (e.g., fingers). It also includes any substance or instrument. Surprisingly, by definition, it also consists of a hand, toe, or tongue. By definition, “forcible sexual penetration” can include any of the following actions:
- Physically forcing a foreign object into another person's vagina or anus against their will;
- Coercing the victim to penetrate another person with a foreign object;
- Coercive penetration by threatening harm to a victim if they do not submit;
- Coercive penetration by posing as a public official and threatening to arrest, incarcerate, or deport the victim (or another person) if the victim does not submit;
- Sexual penetration of a victim by posing as someone the victim knows to elicit their consent;
- Sexual penetration of a victim who is unconscious or intoxicated and unable to consent;
- Sexual penetration of a victim who is disabled or mentally or emotionally incapable of understanding or consenting.
Additionally, under this law, it is a misdemeanor at best to participate in sexual penetration with anyone under age 18, even if it is consensual (similar in scope to statutory rape). If the willing participant is under age 16, it is a felony.
Penal Code 289(a)(2) defines a threat of retaliation against the victim or someone else to the list of coercive means to accomplish the crime. The perpetrator does not need to use force or fear immediate injury if, instead, they use threats of future harm. Penal Code 289(d) defines committing the penetration offense against an unconscious person if they knew of the unconsciousness, including being unaware or sleeping.
What are the Penalties for Penal Code 289 PC?
In most cases, a conviction for forcible penetration with a foreign object is punishable by fines of up to $10,000 and prison time of up to 8 years. There are some enhanced penalties to this guideline, however:
- If the victim is under age 18, the maximum sentence is extended to 10 years;
- If the victim is under age 14, the maximum sentence is extended to 12 years;
- If the act is consensual with a participant under age 18 (a misdemeanor), the sentence is up to 1 year in jail.
Will You Have to Register as a Sex Offender?
Yes, in almost all cases, 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 convicted sex offenders to register with their local police station where they live.
Most forced penetration cases require a lifetime registration (Tier-3 offense), although if the act was through threat rather than force, the registration requirement is usually 20 years (Tier-2 offense).
For misdemeanor charges where the consenting victim is under age 14, and the age difference is less than ten years, the registration requirement is a minimum of 10 years (Tier-1 offense) unless the judge waives the requirement.
The only instance you might avoid the sex offender registry is for the rare misdemeanor-level offense.
What are the Related Sex Offenses?
- Rape (Penal Code 261 PC): Engaging in sexual intercourse with someone against their will or with someone unable to consent;
- Oral copulation by force or fear(Penal Code 287 PC): Similar in scope to the penalties of forcible penetration, but involving oral sex instead of foreign objects.
- Sexual battery (Penal Code 243.4 PC): Touching someone's private parts without their consent for sexual gratification or abuse.
- Statutory rape (Penal Code 261.5 PC): Sexual intercourse with a minor, even when consensual (similar in scope to misdemeanor forcible penetration).
How Can You Fight PC 289 Charges?
Forcible penetration is a severe charge carrying lasting repercussions on your life if you are convicted. The most crucial factor that makes this action illegal is the matter of consent (except for victims under age 18). In other words, prosecutors must prove beyond a reasonable doubt that the victim did not consent, could not consent, or was not old enough to consent.
Thus, the most common strategy used by criminal defense lawyers to answer these charges is that the action either did not happen or was not forced without consent. Specifically, they may argue that the alleged victim consented, you reasonably believed it was consensual, or the accusation itself is false.
In some foreign object cases, a prosecutor can find it challenging to prove their case when the alleged victim and perpetrator gave opposite stories. We might be able to raise reasonable doubt over whether the alleged acts occurred with the defendant's specific intent.
It might be possible to negotiate with the prosecutor for reduced charges or even a case dismissal. Further, we may be able to persuade law enforcement detectives and the prosecution from filing formal criminal charges in the first place. This is known as prefiling intervention and is called a “DA reject.”
Eisner Gorin LLP is a top-rated law firm in LA County serving people across southern California. You can contact us for an initial consultation at (310) 328-3 or fill out our contact form.