Review of California Penal Code 289 PC
California Penal Code 289 PC defines the crime of “forcible penetration with a foreign object.” The statute describes this offense as penetrating the vagina or anus of a victim by use of a foreign object by use of force or fear without the victim's consent.
If you are convicted of violating PC 289, you face up to eight years in state prison. If the victim was a minor under 14, the sentence increases to 12 years. The judge could also order you to register a sex offender as a tier-three offender, described under Penal Code 290 PC.
Prosecutors typically aggressively pursue a conviction for most sexually related offenses, and this is especially true for felony crimes if the victim was not able to voluntarily give consent due to any of the following conditions:
- physical impairment or disability,
- mental disorder or illness,
- victim was unconscious,
- victim was a minor, or
- victim was too intoxicated to resist sexual advances.
In California, sex crimes begin at their lowest level with misdemeanor Penal Code 243.4 PC sexual battery, described as unwanted sexual touching and punishable by up to six months in jail. Penal Code 289 PC foreign object sexual assault is a much more severe crime than a misdemeanor sexual battery, California's most common sex charge.
PC 289 carries a maximum sentence of eight, ten, or twelve years of imprisonment. In the same case, prosecutors could charge someone with Penal Code 243.4 sexual battery and Penal Code 289 foreign object sexual assault because the sexual battery is a lesser included offense of foreign object assault.
However, the double-jeopardy clause would usually preclude convicting on both crimes at once. Our Los Angeles criminal defense lawyers will review this topic further below.
What Is Foreign Object Sexual Assault?
California Penal Code 289 PC is unique due to the specific nature of the crime, which is the introduction of the following objects by the perpetrator:
- any foreign object,
- substance, instrument, or
- any device other than a sexual organ into the genital or anus.
The use of a foreign object must be against the victim's will and for the purpose of sexual gratification. California Penal Code 289(a)(1)(A) defines forcible penetration with a foreign object as follows:
- “any person who commits an act of sexual penetration accomplished against victim's will by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or someone else.”
While “sexual penetration” sounds like a Penal Code 261 PC rape involving a male sex organ, Penal Code 289(k)(1) instead defines penetration of the genital or anal opening as introducing a foreign object, substance, instrument, device, or by an unknown object.
This crime under Penal Code 289(k)(2) could include the use of fingers, hands, toes, tongue, bottles, or anything other than a sexual organ. The related California crimes include Penal Code 287 oral copulation by force or fear, Penal Code 261 rape, Penal Code 288.3 contacting a minor to commit a felony, Penal Code 261.5 statutory rape, and Penal Code 286 PC sodomy.
Penal Code 289(a)(2) describes a threat of retaliation against the victim or others to the list of coercive means to complete the crime. This means the perpetrator does not have to use force or fear immediate injury; instead, they use threats of future harm.
Penal Code 289(b) describes committing a foreign object penetration crime against someone incapable of giving legal consent to sexual activity. This could be due to a mental disorder or physical disability as long as it can be proven the perpetrator knew or should have reasonably known of the victim's incapability.
Penal Code 289(d) describes committing a sexual penetration crime against an unconscious victim as long as it can be proven. This includes not unconsciousness but also if they were unaware or asleep.
What are the Enhanced Penalties for Penal Code 289?
Penal Code 289 PC will increase the penalty of up to eight-years penalty for foreign object sexual assault under the following circumstances:
- If the victim was a minor fourteen years or older, then the penalty will increase up to ten years in prison (Penal Code 289(a)(1)(C)).
- If the victim was a child under the age of fourteen, then the penalty will increase up to twelve years in prison (Penal Code 289(a)(1)(B));
A conviction under Penal Code 289 PC will subject a defendant to California's sex registry requirement. The Sex Offender Registration Act mandates that convicted sex offenders register with the local police station where they live. Penal Code 667.71 PC defines the habitual sex offender law in California.
How Can I Fight Foreign Object Charge?
If charged with this serious crime, you will need to have an experienced defense lawyer to have the best chance at a favorable outcome. Some of the common defenses for Penal Code 289 PC charges include:
- The victim gave consent,
- You reasonably believed the victim consented,
- There was no sexual penetration,
- false accusation.
In some foreign object cases, prosecutors have difficulty proving all the elements of the crime as there are two different stories. Further, they must show the defendant's specific intent or guilty mind, which is often challenging.
Evidence of intent is often circumstantial and could contradict other details of the case. This means we might create reasonable doubt whether the unlawful sexual acts occurred or show the prosecutor they can't prove intent.
Defendants often claim the alleged victim gave consent to the sexual activity but only changed their minds later. Another potential defense is police misconduct in investigating the defendant's interrogation, which could require a motion to suppress evidence.
We may be able to negotiate with the prosecution for reduced charges or a case dismissal through a process known as a prefiling intervention.
Cron, Israels & Stark is a Los Angeles-based criminal defense law firm representing clients across Southern California. You can reach us for a free case evaluation by calling (424) 372-3112 or filling out our contact form.