Sodomy Laws in California – Penal Code 286 PC
Sodomy, as defined in a legal context, is a sexual act involving any penetration involving the penis of one individual and the anus of another person.
The length of time over which said penetration occurred, or the degree to which it was performed, are irrelevant factors in terms of the law; ejaculation is also not required.
California Penal Code 286 PC is the statute making sodomy a crime in certain situations, such as when an adult commits sodomy with a minor or by using force, fear, or threats.
The legal definition of PC 286 says: “Sodomy is sexual conduct consisting of contact between the penis of one person and the anus of another person. Any sexual penetration, however slight, is sufficient to complete the crime of sodomy.”
An example of illegal sodomy is when a man has anal sex with a woman after threatening to harm them if they don't consent. A violation of this statute is a severe offense that can lead to state prison time. PC 286 can be charged by prosecutors as either a misdemeanor or felony, which is called a “wobbler.”
The sexual-related crime of sodomy is divided by statute depending on the victim's age and if the conduct was consensual. When two adults engage in the act consensually, sodomy is not considered illegal. So when does it become a crime? Our Los Angeles criminal defense lawyers will look at this law further below.
When is Sodomy Considered a Crime?
Sodomy becomes a crime only in instances where certain relevant factors qualify it as such. It must be performed between consenting adults.
Further, a person who legally gives consent must be able to do so voluntarily of their own accord and must understand the nature of what constitutes the act of sodomy. As noted, Penal Code 286 is the California statute that outlines the specifics that make sodomy illegal.
One example, for instance, would be in situations where sodomy was committed between a minor and an adult who perpetrated the act via threats, intimidation, force, etc. Further examples are listed below.
Illegal Acts of Sodomy:
- Penal Code 286(b)(1) engaging in the act of sodomy with an individual who is under 18 years old;
- Penal Code 286(b)(2) if you are over 21 years and engage in sodomy with someone who is under 16 years old;
- Penal Code 286(c)(1) if you engage in the act of sodomy with someone under 14 and the age difference is over ten years.
- Penal Code 286(c)(2)(A) for acts of sodomy when it's done against the victim's will using force, violence, duress, menace, or fear;
- Penal Code 286(c)(2)(B) for acts of sodomy with someone under 14 when done against their will using force, violence, coercion, or fear;
- Penal Code 286(c)(3) for acts of sodomy where it's done by threatening to retaliate in the future against the victim or other person;
- Penal Code 286(d)(1) if you acted in concert with another person to commit acts of sodomy against the victim's will using force or fear;
- Penal Code 286(f) when the act is performed on a person unable to give consent, i.e., someone who is unconscious or incapacitated in some way, including persons with mental disorders or physical disabilities rendering them similarly incapable
Other similar statutes can be charges for illegal acts of sodomy when an individual is forced to commit the act under duress, after being threatened, intimidated, or physically assaulted by the other person, and when the act is committed between fellow prison/jail inmates.
What are the Potential Penalties?
Some sodomy offenses are wobblers, which are crimes that can be charged as misdemeanors or felonies, which depend upon the specifics of a particular case, and whether there are any additional factors to be taken into account, such as previous criminal history.
A sodomy charge qualifies as a wobbler when the act is committed with a minor, per Penal Code 286b1 PC, or involves fellow jail or prison inmates, per Penal Code 286e PC.
If the prosecutor charged the crime as a misdemeanor, it carries a potential punishment of up to one year of jail time. A felony charge, however, is punishable by a maximum three-year prison sentence.
Whether the sodomy charge is a misdemeanor or felony, most of the time, a conviction will require an individual to be registered as a California sex offender. Under the one strike law, you could face enhanced penalties if committed under aggravating circumstances.
Outside of the above, all other violations of PC 286 qualify as immediate felonies, punishable by years of prison time. Depending on the case's particulars, the specific amount of prison time varies.
What About Civil Lawsuits for Sodomy Victims?
Even in cases where the defendant is found not guilty of a sodomy charge, if the other party believes themselves to be a victim of sodomy, they have the right to file a civil lawsuit to receive compensation for things such as necessary medical bills, counseling, pain and suffering, mental anguish, and lost work income.
A civil lawsuit can be filed in cases where criminal charges were never filed. Civil lawsuits are considered separate from criminal charges and operate independently of criminal charges. However, a criminal conviction can be used to demonstrate civil liability if a civil lawsuit is filed for an allegation of sodomy. Each case is fact-specific.
What Are Some Related Crimes?
In California, there are several main criminal charges related to criminal sodomy. These include:
- Penal Code 243.4 PC – sexual battery,
- Penal Code 288i PC – lewd acts with a minor child,
- Penal Code 288.5 PC - continuous sexual abuse of a child,
- Penal Code 261 PC – rape,
- Penal Code 261.5 PC – statutory rape,
- Penal Code 264.1 PC – gang rape,
- Penal Code 266c PC - unlawful sexual intercourse,
- Penal Code 289.6 PC - sex with an inmate,
- Penal Code 289 PC – foreign object penetration.
While a sodomy charge can be either a misdemeanor or a felony, rape is always charged as a criminal felony by a prosecutor, with a punishment of up to eight years in prison.
What Defenses Are Available for this Charge?
There are three common defenses in the event someone faces a sodomy charge. These include scenarios in which:
- a false accusation was made by the “victim” against the defendant;
- the “victim” did, in fact, consent to the act;
- the defendant was unaware of the victim's actual age when the incident occurred.
A detailed criminal investigation must occur, and reasonable evidence must be provided to use false allegations as a defense. Similarly, it can be argued that consent was given to the defendant at the time.
If force is alleged, perhaps we can argue there was consent, which could be proven by showing a prior relationship to the victim or medical records to show a lack of physical evidence of the anal area.
Perhaps we could argue there was a mistake of age when the victim is 14 years of age or over and lied about their age or appeared physically older.
Perhaps we can make an argument there was no anal penetration. To be convicted of sodomy, the prosecutor has to prove beyond a reasonable doubt that there was some penetration or contact between the penis of the defendant and the anus of the victim.
Perhaps we might be able to convince the prosecutor not to file formal criminal charges through a process called prefiling intervention or negotiate to get the charges reduced or even dismissed.
Eisner Gorin LLP is located in Los Angeles County. You can reach us for an initial case review by calling (310) 328-3776 or using the contact form.