California statutes detail different forms of rape. You learn about one of these forms, which is forcible sexual penetration, in this article. California Penal Code 289 PC prohibits all kinds of forcible penetration, which involve penetration of someone else’s anal opening or genital parts using a foreign object, fingers, or penis – for males, without the victim’s consent.

You could also violate PC 289 by making someone else penetrate the accuser’s anus or genitals with an intent of sexual abuse or gratification. Another form of Penal Code 289 violation is where you force the victim to penetrate themselves using a foreign object to inflict harm to them.

Forms of forcible penetration could include inserting your finger in a woman’s genitals or a pencil-head in a man’s anus. While these acts are not inherently illegal in Orange County, you could subject yourself to criminal liability if you did them to a minor – someone under the age of 18 years or without the plaintiff’s consent.

Penetration without consent could mean using physical force, restraining your victim, threatening the victim, or penetrating an intoxicated person.

You want to hire an experienced criminal lawyer if you or your loved one is facing PC 289 charges. You cannot go wrong by choosing Orange County Criminal Lawyer. We are a team of criminal defense lawyers who have in-depth experience with the California justice system. We also have represented many clients facing charges before and have had some of their criminal charges dropped, and others reduced. Reach out to us today!

California’s Legal Definition of Forcible Sexual Penetration

Forcible sexual penetration has many definitions according to the charges you face under subsections of Penal Code 289. The definitions include:

Forcible Penetration by Fear or Force

According to California PC 289, the crime of forcible sexual penetration by fear or force is:

  • Penetrating someone else’s genitals or anal opening

  • Where you use a foreign object to do the penetration

  • Without the consent of the victim or to a minor

  • By using threats, violence, or force

You should learn that the court cannot convict you before the prosecution can prove the above elements of the crime. Let's delve into these elements read to get a more vivid meaning of them.

Using a Foreign Object for Sexual Penetration

California law describes sexual penetration as an activity you would do for sexual gratification, arousal, or abuse. Sexual abuse means you penetrated the victim with the intent of causing discomfort, pain, or injury. The penetration could involve:

  • Penetrating another person’s anus or genitals

  • Making the victim penetrate the anus or genital parts of another victim

  • Forcing the accuser to penetrate their anal opening or genitals

Note that even the slightest penetration is considered as forcible penetration if done without the consent of your victim. If the victim is a female, you don’t have to penetrate her vagina to get charged. You can also violate PC 289 by penetrating the outer lips of the vagina – labia majora.

Foreign objects are anything other than sexual organs. If forced sex is done using a sexual organ, you are charged with rape instead.

Lack of Consent

Lack of consent is another element of forcible penetration that the prosecution must prove in court. Someone consents sexual penetration if they act voluntarily and allow the act to occur. Proving that the victim consented penetration is hard because your spouse or intimate partner could accuse you even if they requested that you use a condom.

Forcible Penetration

This is a form of forcible penetration where you are charged if you used:

  • Any kind of violence

  • Force, for example, physical force to overpower your victim

  • A threat, for instance, telling your victim you would injure them if they do as you say

Forcible Penetration of a Disabled Person

Not only can you get charged for forcible sexual penetration when you use menace, threats, or fear, but also when you penetrate a person with a mental disorder or physical disability.

Persons living with disabilities could not understand the outcome of sexual acts, or their disorder could prevent them from legally consenting.

Forcible Penetration of an Unconscious Person

The court could convict you if found guilty of using a foreign object to penetrate the genitals of an unconscious person. Typically, unconscious persons cannot consent to sexual penetration, nor can they resist the act.

An unconscious person doesn’t necessarily mean someone who has passed, but someone unconscious of the act. For instance, penetrating someone who is asleep, unaware that you are performing the action, or cannot understand the consequences of the act, especially if you tricked them.

Forcible Penetration of an Intoxicated Person

You are charged with forcible sexual penetration if you use a foreign object to sexually penetrate someone who has taken intoxicating drugs, alcohol, or substance. Charges are preferred against you if you committed the crime, knowing that the person could not consent to sexual penetration because of their intoxicated state.

There are many gray areas because several sexual encounters are reported to happen when both partners are intoxicated. With PC 289, someone is considered if they are intoxicated if they cannot understand the physical nature of sexual penetration and the consequences.

Punishment and Sentencing for 289 PC Violation

California law is harsh to persons who violate PC 289 like other rape statutes. Common punishment and sentencing include:

  • Paying a fine that doesn’t exceed $10,000

  • Serving jail time in California state prison for three, six, or eight years

  • Formal/ felony probation. In the year 2017, judges could sentence convicted to probation only if the victim is a person living with a disability

Forcible Sexual Penetration of a Minor

Under California law, a minor is someone below the age of 18 years. You risk harsher punishment if you sexually penetrate a minor using a foreign object.

Possible penalties include:

  • Spending time in state prison for eight, ten, or 12 years if the victim is below the age of 14 years

  • Serving time in prison for six, eight, or ten years if the plaintiff is 14 years old or above

Sex Offender Registration and Other Penalties

A three-tier system is in place for registration of sex offenders. If you fall in the lowest tier – first tier, you get registered for ten years. The mid-level tier or second-tier attracts a 20-year registration. You get registered for life should you fall in the third-tier if you are a high-level offender.

  1. Tier One - PC 289(c)/PC 289(f)/PC 289(g)/PC 289(h)/ PC 289(I)

The tier involves misdemeanor criminal cases and a few felony ones. Under Penal Code 289, you find the tier one acts in c, f, g, h, and I subsections. Here, you face charges if the accuser is below 18 years, and you didn't use physical force.

Possible Penalties

Punishment could include serving jail time for one year or 16 months, two years, or three years in prison. Apart from registering as a sex offender, you must serve 50% of your sentence before the court could consider probation.

  1. Tier Two - PC 289(b)/PC 289(d)/PC 289(e)/PC 289(g)

Involves felony offenses where you perform a sexual act against the plaintiff’s will through threats to retaliate them or someone they care about in the future. The tier also involves crimes committed against persons with disabilities or mentally disturbed.

  • California PC 289(b) - You are charged under this statute if the plaintiff was incompetent

  • California PC 289(d) - You are charged under this statute if your victim was unconscious when the crime occurred.

  • California PC 289(e) - Charges are preferred against you under this statute if you make the plaintiff believe that you are a public officer with the jurisdiction to arrest or deport them.

  • California PC 289(g) - Here, you are sentenced to state prison for eight years

In addition to registering as a sex offender, if charged under any of the sections above, you spend time in state prison for three, six, or eight years. You must serve 85% of your sentence before the court can offer you probation. You are also subject to the Three Strikes Law under this offense.

  1. Tier Three – Penal Code 289(a)(1)(B)/ Penal Code 289(a)(1)(C)

The tier caters for sexual crimes against minors below the age of 14 and younger than the suspect with ten years (Penal Code 289(a)(1)(B)) or above 14 but below 17 years (Penal Code 289(a)(1)(C)). Tier three 289 acts also include plaintiff’s who were intoxicated or unconscious to consent when the crime happened. If you sexually penetrated someone by coercion or fear, your case also falls under tier three.

Penalties for Penal Code 289(a)(1)(B)

After registering as a sex offender, you could spend time in state prison for eight, ten, or 12 years. Here, you must spend 85% of the years you are sentences. You are also subject to the California Three Strikes Law.

Penalties for Penal Code 289(a)(1)(C)

If found guilty under California PC 289(a)(1)(C), you serve time in state prison for six, eight, or ten years. You must spend time in state prison for 85% of the time you are sentenced. Per California law, this offense is a violent and serious one. You also receive a strike under the Three Strikes Law.

If the court orders you to register as a sex offender in California, the Sex Offender Registration Act needs you to register with Orange County police or your city of residence. You are required to renew the registration when moving to a new home and annually within five weekdays of your date of birth.

Possible Defenses for Forcible Sexual Penetration in California

Facing charges for forcible sexual penetration doesn't imply that you are guilty. If you are sure that you never committed the alleged crime or were charged for a wrong crime, then you need to discuss with your criminal defense lawyer to build solid defenses.

Possible legal defenses you and your attorney could find suitable include:

  1. The Victim Gave Consent

Under California Penal Code 289 PC, lack of consent is a primary crime element that the prosecution must prove before the judge can pass their judgment.

A lot of ambiguity exists in these cases. Prosecutors face challenges when proving beyond a reasonable doubt that the plaintiffs’ allegations are true because most PC 289 cases involve “they said” claims.

If you prove that there was actual consent for sexual penetration, you could present it in court, and if genuine, the jury could acquit you.

  1. Violations of Your Rights

Infringing on your rights could happen when the police force you to confess that you violated PC 289. The police could corner you during interrogation by issuing threats. Examples of threats could include never seeing your family again, or they would add extra charges to your case like attempted murder.

Feeling helpless, you could accept that you committed the offense when you did not, to cease the offensive questions. You could tell the court about the coerced confession and have your case dismissed.

  1. Reasonable Belief as to Consent

The victim doesn’t have to consent to the penetration under California law. You still can argue in court that you reasonably believed that the victim consented to the sexual penetration.

  1. False Allegations

Proving forcible penetration can be challenging. There is ambiguity since people do not sign consent forms before performing sexual acts. The plaintiff could give consent and later change their mind. Since the law is tough on sex crimes, you bear the burden to prove that the charges against you are false. Consider working with a competent lawyer

  1. Insufficient Evidence

The plaintiff could be lying to the authorities that you used a foreign object to penetrate them in their genitals with the purpose of revenge or to destroy your reputation. In California, sex offenses attract severe punishment, and you could end up in jail for many months before trial.

As much as the process is daunting, you could build a solid defense and fight for your freedom if there is little evidence against you gathered. If the prosecution lacks enough evidence, the court, as needed by California law, should dismiss your charges or lower the charges.

  1. Prior Sexual Penetration Later Regretted

You could have had consensual sexual conduct with the plaintiff in the past using a foreign object like a dildo, and they later regretted the consequences. They then accuse you falsely for performing the acts forcibly. If this is the case, you could prove in court that the sex act was consented and have the charges dismissed.

Importance of Statutes of Limitation

Statutes of Limitation restrict the period within which the state should prosecute you for your crime(s).

Understand that in California, the Statute of Limitations for any sex offense is usually more significant when compared to most criminal offenses. The state broadened the restrictions to give persons facing stigma and victimization the chance to come forward and report sex crimes against them.

Particular limitations allow the victim to report you for sex abuse tens of years after your crime commission.

Statute of Limitations for Forcible Penetrations with A Foreign Object

California PC sections 801.1 and 802 details the statutes of limitation for PC 289. The limitations include:

  • California PC 801.1a states that if the victim was below 18 years when you committed the crime, they could press charges against you before their 28th birthday. You are charged with a felony crime if successful

  • If your victim was an adult at the time of your crime commission, then you could get prosecuted within ten years under California PC 801.1. Here, you are charged with a felony crime

  • Per California PC 802a, if yours was a misdemeanor crime, then the victim is needed to press charge within a year after the crime occurred

Exceptions to Statutes of Limitation

California PC 802 details exemptions to the Statute of Limitations when you are facing charges for forcible sexual penetration. The exemptions include:

California PC 803(f)(1) – Independent Corroborating Evidence

The prosecution could make a criminal complaint within one year from the date someone reports to the police that you sexually penetrated them with a foreign object while they were a minor.

Below are conditions needed before the exception can apply:

  • The statutes of limitations under California PC 800 through 801.1 have expired

  • There was significant sexual contact per California PC 1203.066b, which takes in sexual penetration

  • Evidence exist apart from that of a mental health expert supporting the accuser’s claims

  • If the plaintiff made the allegation at the age of 21 years or above, they must offer proof beyond a reasonable doubt

California PC 803(g) – The DNA Exception Rule

After determining the suspect’s DNA, the prosecution has one year to file a criminal complaint and you for the crime of forcible sexual penetration, under particular conditions including:

  • You committed the crime before 1st January 2001, and the authorities collected DNA evidence and analyzed it no later than 1st January 2004

  • You committed the offense before or on 1st January 2001, and the police collected and analyzed DNA evidence within two from the date of crime commission

If any of the exceptions mentioned above apply, you could get charged many years after your crime commission.

Similar Crimes to Forcible Sexual Penetration

There are several crimes that the prosecution could charge you in the place of or together with forcible sexual penetration in California. These crimes include but not limited to:

Sexual Battery - Penal Code 243.4

Also known as sexual assault, sexual battery occurs when you touch someone else’s genitals without their consent for your arousal, sexual gratification, or sexually abusing them.

Violation of California PC 243.4 is a wobbler offense. That means that the court could charge you with either a felony or a misdemeanor crime. If convicted of a felony offense, you could serve time in prison for not more than four years.

Your defense lawyer could help you have your PC 289 charges reduced to sexual battery ones. Usually, sexual battery charges attract lesser penalties than forcible sexual penetration.

Oral Copulation by Force or Fear - Penal Code 288a

The crime of forcible sexual penetration and oral copulation by force are similar in many ways except that the latter involves oral sex, not penetration in genitals using foreign objects.

Oral copulation by fear comes with additional allegations like PC 289. If you perform oral sex on another person by force, the odds are that you touch their genital and that’s forcible penetration and sexual battery.

Under California law, oral copulation by force like forcible penetration is a felony offense. If found guilty, possible penalties include serving jail time for three, six, or eight years. You could serve up to 12 years in California prison if the accuser is a minor.

Rape - Penal Code 261

California PC 261 describes rape as having sexual intercourse with another person without their consent and through fraud, force, or threats. Like oral copulation by force or fear, rape has many similar characteristics with forcible sexual penetration. The disparity is that rape involves sexual intercourse, while forced penetration does not.

You could face several sex crimes charges where the accuser did not content the act. The court could also choose to charge you with rape in the place of forcible penetration. The crime of rape like forcible sexual penetration is a felony offense. If found guilty, you could serve time in prison for three, six, or eight years in state prison.

Find an Orange County Criminal Lawyer Near Me

Violation of PC 289 in Orange County is severe, just like other sex crimes. Your charges could change even if you never use force. For instance, forcible sexual penetration against a minor could attract harsher charges than forcibly penetrating an adult.

Adding to a lengthy time in prison, the court could order you to register as a sex offender in Orange County or your city. You need to work with a competent defense lawyer if facing PC 289 charges. Experienced lawyers understand the law and justice system better. We are the law firm you could rely on when building legal defenses to your criminal charges.

Orange County Criminal Lawyer has helped many suspects facing PC 289 allegations in California, and we could help you or someone you know. Reach out today for a cost-free consultation. Call us now at 714-262-4833.