Forcible Sexual Penetration with a Foreign Object

Penal Code 289 PC

Penal Code 289 PC defines and penalizes the crime of forcible penetration with a foreign object in California. The act referred to as criminal include penetrating the vagina or anus of the victim using a foreign object, without consent, by means of force or threats of force.

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PC 289 states that:

“any person who commits an act of sexual penetration when the act is accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for three, six, or eight years.”

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PC 289 forcible acts of sexual penetration is a felony and is punishable by imprisonment in California state prison for three (3), six (6) or eight (8) years, and/or a fine of up to ten thousand dollars ($10,000).

In addition to imprisonment and fine mentioned above, conviction for this offense will also result to lifetime registration as California Sex Offender being classified as tier-three offense. However, when circumstances warrant, the judge has discretion not to require registration in PC 289(h) or (i) cases when the child was at least 14 years old and within 10 years of age of the defendant.[1]

With the effectivity of Senate Bill (SB) 384 replacing California’s lifetime sex registration requirement, offenses are now classified into levels. This means that if you are convicted under this section as a three-tier offender, you must register with the state at least every year for the rest of your life. Failure to comply with the registration requirement will result in additional felony charges for failure to register as a sex offender.[2]

Being charged with a violation of this section can be distressing. Hence, you should be assisted by an experienced attorney during trial. He can help you raise common legal defenses to have this charge reduced or dismissed. Common legal defenses may include:

1. The alleged “victim” actually consented,
2. The defendant reasonably believed that the “victim” had consented, or
3. The accusations are false.

When is the crime under Penal Code 289 committed?

Penal Code 289 punishes the act of forcibly penetrating a foreign object. There are several distinct legal definitions of forcible penetration with a foreign object—depending on the subsection of PC 289 under which you are charged.

1.1. By force or fear

To be convicted of any offense, the prosecutor must be able to prove the elements of the crime beyond reasonable doubt. The basic legal definition of sexual penetration by force or fear has the following “elements of the crime” (these are facts that the prosecutor must prove for you to be guilty of this offense):

1. You committed an act of sexual penetration with another person;
2. That penetration was accomplished using a foreign object, substance, instrument, or device, or an unknown object;
3. The other person did not consent to the penetration; and
4. You accomplished the penetration through force, violence, duress, menace, fear of immediate and unlawful bodily injury, or future threats of bodily harm.[3]

Sexual penetration, with a foreign object contemplate under Penal Code 289

Sexual penetration is defined under California law as any of the following, when done for the purpose of sexual abuse, arousal, or gratification:

1. Any penetration, however slight, of the genital or anal opening of the victim;
2. Causing the victim to penetrate, however slightly, the genital or anal opening of the defendant or a third person; or
3. Causing the victim to penetrate, however slightly, his or her own genital or anal opening.[4]

“With a foreign object” refers to any foreign object, substance, instrument, or device includes any part of the body except a sexual organ.[5] This is so because if the penetration is done with a sexual organ, it becomes sexual intercourse and, when done without consent, will lead to charges for Penal Code 261 rape.

The purpose for which the penetration should be made either for sexual arousal or gratification, OR for purposes of sexual abuse. Here, “Sexual abuse” as used in this context means penetration for the purpose of causing pain, injury, or discomfort.[6]

Lack of consent

Lack of consent of the aggrieved party is an essential element of Penal Code 289 forcible penetration.[7]

Consent is only obtained sexual penetration when a person has acted freely and voluntarily, and that he/she understands the nature of their act.[8] And even if a person initially consents to oral sex, that consent may be withdrawn. If it is, the other person could be guilty of oral copulation by force or fear if s/he continues the act.[9]

Forcible penetration

Forcible sexual penetration, as contemplated in Penal Code 289, is accomplished through any one of the following:

1. Force—meaning just enough physical force to overcome the other person’s will;
2. Violence;
3. Duress—meaning a direct or implied threat of force, violence, danger, hardship, or retribution that would cause a reasonable person to do something s/he would not otherwise do;
4. Menace—meaning a threat, statement, or act showing an intent to injure someone;
5. A threat of immediate and unlawful bodily injury; and/or
6. A threat to retaliate if the victim does not submit—by kidnapping, unlawfully restraining or confining, or inflicting extreme pain, serious bodily injury, or death on the victim or a third party.[10]

The element of force, duress etc. may be dispensed with for the purposes of Penal Code 289 in instances when penetration is done with persons suffering from mental disorder/ physical Disability, with unconscious person, or with an intoxicated person.

Forcible Penetration with persons suffering from mental disorder/ physical Disability

There are also instances wherein there is forcible sexual penetration even when there is no actual use of force, duress, etc. The acts referred to includes an act of sexual penetration with someone who has a mental disorder or developmental or physical disability that prevents him/her from understanding the nature and possible consequences of the act, and that the offender knows or reasonably should have known that the other person’s disorder or disability would prevent him/her from legally consenting.

Forcible Penetration with unconscious person

Even when there is no force, duress etc., conviction under this statute can still be had if you engaged in sexual penetration with a foreign object with someone who is unconscious of the nature of the act, and that You know that s/he is unable to resist for this reason.[11]

For the purpose of this subsection, “Unconscious of the nature of the act” means that s/he is unconscious or asleep, s/he is unaware that the act is occurring, OR s/he is not aware of the essential characteristics of the act because the perpetrator tricked, lied to, or concealed information from him/her.[12]

Forcible Penetration with an intoxicated person

Another instance when in the prosecution of Penal Code 289, the element of force, duress etc. may be dispensed with is if you commit an act of sexual penetration with a foreign object and the other person is incapable of resisting because s/he has consumed drugs, alcohol, or another intoxicating substance; and you knew or reasonably should have known that s/he could not consent because of this.[13]

As contemplated in this statute, a person is considered too intoxicated to consent if s/he is unable to understand and weigh the physical and moral nature of the sexual penetration, and/or Its probable consequences.[14]

Penalties for conviction under Penal Code 289 PC

Penal Code 289 forcible sexual penetration with a foreign object is a California felony and is punishable by Three (3), six (6) or eight (8) years in California state prison; and/or fine of up to ten thousand dollars ($10,000).²³

In cases of conviction for sexual penetration of a disabled person and when circumstances warrant, the judge may impose Felony (formal) probation instead of jail time. Starting in 2017, this will be available only in cases of --not in cases of penetration by force or fear, or of an unconscious or intoxicated person.

Forcible sexual penetration of a minor

The penalty substantially increases when the victim of the offense is a minor i.e. under 18 years of age at the time of the commission of the offense. In that case, penalty is Six (6), eight (8) or ten (10) years in prison if s/he is 14 years of age or older; or Eight (8), ten (10) or twelve (12) years in prison if s/he is under 14.

Sex offender registration requirement

One of the more serious consequences for conviction under Penal Code 289 is that you will be required to register as California Sex Offender. With the three-tier registration system, offenses are now classified into tier levels one, two and three; which shall determine the minimum period with which the convicted person shall register as sex offender. The lowest level offenders are first-tier, and they have to register for at least 10 years. Mid-level offenders are second-tier, and they have to register for at least 20 years. And high-level offenders are third-tier, and they have to register for life.

For Penal Code 289, Tier one 289 acts include misdemeanor and some felony cases; specifically, subsections c, f, g, h, and i of PC 289; however, the judge is not required to impose registration requirements in PC 289(h) and (i) cases when the defendant is within 10 years of age of the child and if the child was at least 14 years old;

Tier two 289 acts include felonies when the act is accomplished against the victim’s will by threatening to retaliate in the future against the victim or any other person, or when the victim is at the time incapable of giving consent because of a mental disorder or developmental or physical disability

Tier three 289 acts include penetration by force or duress, or when the victim is under 14 and more than 10 years younger than the defendant, or the victim is too intoxicated to consent, or the victim is unconscious

The Sex Offender Registration Act imposes certain duties to offender such that it requires any convicted sex offender who lives in California to register with the police of the city or county where they live. every year, within five (5) working days of the person’s birthday, and every time that person moves to a new residence.[15]

Legal Defenses for charges under Penal Code 289

Raising legal defenses for charges of violation of Penal Code 289x can be challenging; however, it is not an entirely impossible task. In fact, a legal defense may reduce or even dismiss a charge.

Common legal defenses raised in offenses under this code are: there was consent, you reasonably believed that there was consent, you were falsely accused.

There was actually consent

It must be recalled that lack of consent is an essential element of the crime of PC 289 forcible sexual penetration.

Being an essential element of the crime, it is incumbent upon the prosecutor to prove such elementbeyond a reasonable doubt that there was no consent.

You reasonably believed that there was consent

Depending on the facts of each case, the fact that actually and reasonably believed that s/he consented may actually be raised as a valid defense.

You were falsely accused

Due process and opportunity to be heard are some of the rights accorded to an accused during trial. This is so because being charged does not automatically mean that you are guilty of the offense. A trial, where the accused is given the chance to defend himself of potentially malicious prosecution. In some instances, the accuser is a former or current sexual partner—and acting out of jealousy, revenge, anger, etc.

Related Crimes

Crimes related to Penal Code 289 on Forcible Sexual Penetration include:

1. Penal Code 287 oral copulation by force or fear

2. Penal Code 261 rape

3. Penal Code 243.4 sexual battery

Let’s take a closer look at these related crimes.

1. Penal Code 287 oral copulation by force or fear

It must be recalled that the crime under Penal Code 289 is committed when the penetration is done in the sexual organ of the victim. Penal Code 287 oral copulation by force or fear is almost identical to Penal Code 289—except that the criminal sex act is oral sex, not sexual penetration.[16]

However, almost too often, the victims may allege that defendant performed a number of different sex acts with the victim. As a result, the prosecution is inclined to frequently charge both Penal Code 287 PC and Penal Code 289 PC.

Oral copulation by force or fear is a felony and is punishable by imprisonment for 3, 6, or 8 years in most cases, but up to 12 years if the victim is a minor.³¹

2. Penal Code 261 rape

The crime of rape under Penal Code 261 is very much similar to Penal Code 289 since both of these crimes are accomplished by means of threats, force, or fraud. The distinction lies in the fact that Penal Code 261 PC rape is defined as nonconsensual sexual intercourse.

In most instances of non-consensual sex, the defendant will be charged with both PC 261 rape and PC 289 penetration by force or fear.

Penal Code 261 rape is a felony and punishable by imprisonment in state prison sentence of three (3), six (6) or eight (8) years.[17]

3. Penal Code 243.4 sexual battery

Penal Code 243.4 PC sexual battery/sexual assault is committed you touch another person’s intimate parts without their consent, for purposes of sexual gratification, arousal or abuse.

The charge may be filed as a misdemeanor or a felony, and carries a penalty of up to 4 years in jail or prison.

A misdemeanor conviction under this Penal Code carries a maximum county jail sentence of either six (6) months or one (1) year, depending on the circumstance and a fine of up to $2,000 (or up to $3,000 if the victim was your employee).

A felony conviction, on the other hand, may result to two, (2), three (3) or four (4) years in the California state prison and a maximum $10,000 fine.

If the circumstances warrant, the charge for forcible penetration with a foreign object charges may be reduced to sexual battery charges—which carry a lighter sentence.

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If you have been accused of a crime in California, call (626) 827-7222 to discuss your case with our legal team today.

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