Forcible Sexual Penetration

Elements of the Crime

For the prosecutor to charge you with forcible sexual penetration under PC 289, the prosecutor has to prove several elements of the crime. It should be evident that you committed an act of sexual penetration with another individual. You should have accomplished sexual penetration using an unknown or a foreign object.

The prosecutor has to prove that you did not have the consent of the victim. You should have committed the forcible sexual penetration through force, fear, menace, or violence. You may also have committed the crime by inflicting illegal bodily injury on the victim. You may also have committed the forcible sexual penetration through a threat to retaliate.

In some instances, the victim may not have the ability to give consent for sexual penetration. In this case, you would still face charges even if you claim that you have the consent of the victim. A victim with a physical or developmental disability or a mental disorder may not be able to give consent. If a victim is unconscious of the nature of the sexual penetration act, you cannot claim that you had the authority or permission of the victim. You may also face severe charges if you commit forcible sexual penetration on a person who is intoxicated and unable to resist your actions.

The motivation for forcible sexual penetration with a foreign object is to gain sexual gratification, arousal, or to abuse the victim sexually. A person may face charges under PC 289 for any type of penetration, albeit slight, of the anal or genital opening of the victim. It is an offense to make the victim penetrate, even slightly the genital or the anal opening of another party. It is also an offense under PC 289 to make a person penetrate his or her genital opening even slightly.

What is a foreign object? According to California law, a foreign object is any object other than a sexual organ. Therefore, another body part may qualify as a foreign object. Penetration with a sexual organ without the consent of the victim will attract rape charges under PC 261 instead of charges under PC 289. When the victim of forcible sexual penetration is female, the defendant may face charges even if he/she does not penetrate the victim's actual vagina. As long as there is a penetration of the outer lips of the female genitalia, often known as the labia majora, the crime is complete.

The motivation of the defendant is essential. The defendant is only guilty of forcible sexual penetration if he/she penetrates the victim with a foreign object for sexual gratification, arousal, or sexual abuse. Sexual abuse entails penetrating the victim to cause him or her pain, discomfort, or injury.

Lack of Consent

You cannot face charges if the victim agrees to the act of penetration with a foreign object. For a victim to consent to sexual penetration with a foreign object, the victim should act voluntarily and freely. The victim must also understand the nature of his/her act.

A dating relationship may have existed between the victim and the defendant. However, this fact is not enough to prove that the victim had given consent to sexual penetration. Even if the victim and the defendant are married or were previously married, it is not enough to prove consent.

Forcible Penetration

For the defendant to face charges for forcible sexual penetration with a foreign object, the defendant should have used force. This means that the defendant applied adequate physical force to overcome the victim's will. The defendant may also have used violence, including inflicting physical injury on the victim, to make the victim consent to his/ her actions.

Forcible penetration may also occur if the defendant places the victim under duress while conducting the activity. Duress entails making the victim do something that he/she would not otherwise do. The victim complies with the demands of the defendant for fear of danger, violence, retribution, or hardship.

The defendant may also use menace to make the victim comply. Menace refers to a statement, a threat, or an act indicating the intention to injure a person. The defendant may threaten the victim with immediate bodily injury. The defendant may also warn the victim of imminent harm if the victim fails to cooperate. Imminent harm may include unlawful restraining or confining, kidnapping, serious bodily injury, or death of the victim or another person.

A Disabled Person/Victim

At times, you may face charges under PC 289, even if you do not use force or duress. For instance, if you forcibly penetrate a victim with a mental disorder that prevents the victim from understanding your actions and the potential consequences, you are guilty under PC 289. The same case also applies if you penetrate a victim with a physical or developmental disability that prevents him from understanding your actions.

For you to face charges, it should be evident that you know or that you should reasonably have known about the disorder or disability of the victim. You should have known that the victim could not consent to a sexual act.

An Unconscious Victim

You may also face charges for forcible sexual penetration for penetrating a victim who is unconscious with a foreign object. It is important to note that you will face the charges even if you do not use force on the victim. When a person is unconscious, he/she is not aware of what is happening around him/her.

It is an offense to engage in any form of sexual penetration with a foreign object if the victim is unconscious of the nature of the act. It should be evident that at the time of committing the offense, you were aware that the victim had no power to resist your actions.

It is important to note that the victim does not have to be physically or unconscious for this law to apply. Being unconscious means that the victim is not aware that penetration is occurring. It may also imply that the victim does not understand the nature of the act because the defendant uses trickery, conceals information, or lies to the victim. Being unconscious may also have a literal meaning implying that the victim has passed out or is asleep.

An Intoxicated Victim

A person may also face charges for forcible penetration with a foreign object for committing an act of forcible penetration of an intoxicated person. For instance, the victim may have consumed alcohol, drugs, or other intoxicating substances. Due to intoxication, the victim may not be able to resist. At the time of committing the offense, the defendant should have known that the victim was intoxicated and could not consent or to oppose the act of forcible penetration.

Numerous gray areas surround the fact that the victim was intoxicated. It is common for people to engage in sexual activities after consuming drugs or alcohol. Many sexual acts take place when one or both victims are intoxicated. A person may be too intoxicated if the person cannot understand the moral and the physical nature of sexual penetration. The victim may also not be able to understand the probable consequences of the act.

Consequences for Forcible Sexual Penetration

The crime of forcible sexual penetration is a felony under California law. The possible consequences include serving formal probation. It is important to note that probation is only available in cases of sexual penetration involving a disabled person. However, in cases of forcible sexual penetration by fear or force, probation may not be an option. Probation may also not be available if the defendant engages in forcible sexual penetration of an intoxicated or an unconscious person.

The alternative name for formal probation is felony probation. While on probation, the defendant has to adhere to certain conditions of probation. For instance, the defendant may have to engage in community service. The defendant may also have to meet with the probation officer regularly or make regular visits to the probation office.

The defendant may also be subject to imprisonment in a state prison in California. He/she may serve an imprisonment of three, six, or eight years. The court may also impose a hefty fine of up to $10,000 on the victim.

Committing the crime of forcible sexual penetration on a minor is an aggravating factor. According to the law, a minor is any person below 18 years. If the offense involves a minor, the potential consequences increase. The consequences applicable will depend on the actual age of the minor. If the minor is fourteen years of age or older, the defendant may face imprisonment of six, eight, or ten years in state prison. If the minor is below fourteen years of age, the sentencing increases to eight years, ten years, or twelve years in a state prison in California.

Registration as a Sex Offender

The state of California observes a three-tier sex registration. Registration as a sex offender for a minimum of ten years applies to first-tier sex offenders. First-tier sex offenders are the lowest level of offenders. For second-tier or mid-level sex offenders, registration as a sex offender for a minimum of twenty years is applicable. Third-tier or high-level sex offenders have to register as sex offenders for life.

The applicable registration period will depend on the magnitude of the crime under PC 289. If you commit a misdemeanor offense under PC 289, you will fall under tier one. You will be under tier one for some felony offenses subsections c, f, g, h, and i. For a tier-one sexual offense, you have to register as a sex offender for ten years.

If you commit a sexual act against the victim's will by threatening to retaliate in the future against the victim or another person, you may qualify as a tier-two sex offender. You will also qualify as a tier-two sex offender if, at the time of committing the act, the victim was unable to give consent due to development or physical disability or a mental disorder. For an offense under this category, you have to register as a sex offender for twenty years.

You will qualify as a tier 3 sex offender if you commit the act of forcible penetration through fear, force, or duress. If the victim is below the age of fourteen years, similar charges will apply. You will also face enhanced charges if the victim was intoxicated or unconscious and could not give consent at the time of the act. For a tier-three offense, you will have to register as a sex offender for a lifetime.

Any convicted sex offender living in California has to register with the county or the police of the city where they reside. You will have to renew the registration as a sex offender every year. You have to make the renewal within five working days of your birthday. You also have to renew your sex offender registration every time you move to a new residence.

Fighting Charges under PC 289

You should not give up hope upon facing charges under PC 289. With the help of an experienced attorney, you can fight the charges in court successfully. You require an experienced criminal defense attorney who has handled similar offenses in the past to fight on your behalf. The attorney will know the best legal defenses to use for your case. Some of the applicable legal defenses include:

You had the Victim's Permission

While fighting charges for forcible sexual penetration, you may assert that the victim had given consent. Lack of consent is a critical element of an offense under PC 289. In many cases of forcible sexual penetration, there is a lot of ambiguity on whether the victim consented or not. It may be difficult to prove a lack of consent against reasonable doubt. Therefore, if the victim had given permission, you may fight the charges in court on this ground. Unless the prosecutor proves beyond a reasonable doubt that there was no consent, you cannot face charges under PC 289. In most cases, the prosecutor may not have the ability to prove consent.

You Believed the Victim had Consented

You may still fight charges under PC 289, even if you did not have the consent of the victim. Even if the victim did not allow you or consent to the sexual penetration, you might still have a valid defense. Most judges can understand the ambiguity that surrounds the issue of consent in sexual matters. In most cases, most people engage in sexual activities while intoxicated. One partner may believe that the other has consented only to face charges for forcible sexual penetration. This makes reasonable belief of a partner's consent one of the most powerful ways of fighting charges under PC 289.

False Accusations

You may also assert in court that you are a victim of false accusations. Just like with other criminal offenses, people face false allegations of forcible sexual penetration all too often. Your current or former sexual partner may falsely accuse you of the crime. The main reasons for false accusations include jealousy, anger, and revenge. An accuser may also be your relative, including your children or your parents. A business or romantic rival may also accuse you falsely to gain an advantage over you. With the help of an experienced criminal defense attorney, you can fight false accusations of forcible sexual penetration. An attorney can help to unearth the truth and prove that you did not commit the crime.

Related Offenses

Some violations under California law are related to the offense of forcible sexual penetration. The crimes include oral copulation by force or fear under the California PC 288a. The violation is almost similar to an offense under PC 289. However, under PC 288a, the crime does not include sexual penetration but oral sex. Most people face charges under both PC 289 and PC 288a. This is because, in most cases, a defendant may conduct several forms of sexual assault on the victim.

Other related offenses include Rape under the California PC 261. You may face rape charges if you engage in non-consensual sexual activities through fear, force, or threat.

If you touch another person's private parts without their consent with the intent of sexual gratification, abuse, or arousal, you may face charges under PC 243.4 for sexual battery.

Contact a Los Angeles Criminal Defense Attorney Near Me

If you are facing charges for forcible sexual penetration, the associated consequences may be detrimental. It is important to ensure that you seek the help of an experienced attorney to help you fight the charges. If you are in Van Nuys, contact Leah Legal at 818-484-1100 and speak to one of our attorneys.