Using a foreign object to penetrate the anus or vagina of another person without their consent is a crime under California Penal Code 289. You will be arrested and charged with forcible sexual penetration if you engage in this act. California law is strict when handling sex crimes in the state.

For this reason, a conviction for forcible sexual penetration will attract severe legal penalties. A violation of PC 289 is a felony that results in a lengthy prison sentence and hefty fines. Additionally, the court will order you to register as a sex offender and renew the status for up to ten years. Even after serving your sentence, the conviction will leave a criminal record that impacts your personal and professional lives.

If you or a loved one faces criminal charges for forcible sexual penetration in Fresno, CA, you must be aggressive to fight the charges. The first step towards beating a sex crime charge is to hire and retain a skilled criminal lawyer. At California Criminal Lawyer Group, we will offer the legal guidance you need to secure a favorable case outcome.

Understanding California Penal Code 289

Under California law, it is a crime to engage in object sexual penetration with another person against their will. You can be arrested and charged with this crime for engaging in the act or forcing the victim to penetrate themselves with a foreign object for arousal or sexual gratification. The prosecution must prove these elements to secure a conviction for forcible sexual penetration against you:

You Engaged in Sexual Penetration with Someone Else

The first element that the prosecuting attorney must prove to establish your guilt under PC 289 is that you engaged in sexual penetration. Under this statute, sexual penetration could be any of the following acts done for sexual gratification or arousal:

  • Penetration of the anal opening or vagina.
  • Causing a victim to penetrate the genitals or anus of a third party.
  • Forcing the victim to penetrate their genitals or anus.

The law does not stipulate the exact amount of penetration needed for this offense. Slight penetration that is unconsented could result in criminal charges.

You Accomplished the Penetration Using a Foreign Device

The object used for penetration is critical in a case of forcible sexual penetration in California. The prosecutor must prove that you used an unknown instrument, object, or device to penetrate the genitals or anus of the alleged victim. A foreign object could be anything from a finger to a body part or other items.

This element differentiates forcible sexual penetration from rape. Under California Penal Code 261, rape is the non-consensual sexual penetration of the penis of one person and the vagina of another individual.

You Accomplished the Act Using Force, fear, or Violence

You will face a conviction for forcible sexual penetration if the prosecution can ascertain that you engaged in object sexual penetration with another person through the following means:

  • Force. This involves the use of force enough to overcome a person’s will.
  • Violence. You use violence when you cause injuries to another person while attempting to commit a crime.
  • Menace. Menace is a threatening act or statement to compel someone into a sexual act.

The Alleged Victim Did Not Consent to the Act

Lack of consent is the element that criminalizes most sexual acts. The prosecution must establish that the other person involved did not consent. People can only consent to a sexual act when they understand its nature and consequences. Consent is not a justification for forcible sexual penetration with:

  • A Person Under Eighteen Years

Under California law, individuals under the age of eighteen cannot consent to a sexual act. The element of consent is unnecessary if you engage in objective sexual penetration with a minor.

  • A Disabled Person

Persons with physical or mental disabilities may not be able to understand the nature and outcome of sexual acts. Therefore, engaging in objective sexual penetration with such an individual will result in an arrest and criminal charges. The prosecution will not need to prove the use of force or violence against the victim.

  • An Intoxicated Individual

The court could find you guilty of violating Penal Code 289 when you use a foreign device to penetrate the genitals or anus of an unconscious person. An unconscious individual cannot consent to or resist the sexual act. Under this statute, an unconscious person may be awake but incapable of understanding the nature of the act.

Penalties for Forcible Sexual Penetration

A violation of PC 289 is always charged as a felony in California. The court may impose the following penalties if you are found guilty of the crime:

  • A prison sentence of three, six, or eight years.
  • Felony probation.
  • A fine not exceeding $10,000.

Minors lack the mental capacity to understand the nature and consequences of a sexual act under California law. Therefore, a child cannot legally consent to sexual penetration. Your sentence would include the following if the victim of your crime was underage:

  • Six, eight, or ten years in state prison for a child over fourteen years.
  • Eight, ten, or twelve years in prison for a minor under fourteen years

Felony Probation Under PC 289

Forcible sexual penetration is a severe crime that attracts a lengthy prison sentence. The victim’s nature and other circumstances in your case will impact the severity of your sentence. If you are charged with forcible sexual penetration of a disabled or intoxicated person, you could be eligible for probation.

In California, probation is an alternative to incarceration. You can serve part of your prison sentence through community service if you are sentenced to felony probation. However, probation is not an automatic sentence. Your attorney must negotiate with the prosecution for a probation sentence.

The district attorney or prosecutor will allow you to serve the probation sentence instead of incarceration if you do not have an extensive criminal history. If you are already registered as a sex offender, you must serve your prison time for the offense. Felony probation lasts for three to five years with strict conditions, which include:

  • Monthly meetings with a probation officer. The court will appoint a probation officer to monitor your case after a conviction for forcible sexual penetration. The probation officer must ensure you follow all the probation conditions. You must report your progress during your regular meetings with the probation officer. The officer will write a report to the court regarding your conduct at the end of the probation period.
  • Court fines. A conviction for violating PC 289 attracts a fine of up to $10,000. As part of your probation, you must pay your court fines.
  • Victim restitution. You may be required to pay restitution to the victim of your sex crime and court fines. Unlike the fines, restitution is paid directly to the victim to cover the loss and injuries they suffered from your actions.
  • Community service. You must participate in community service during the three to five years you spend on formal probation. Community service entails volunteer work done for a non-profit organization.
  • Counseling. While you serve your probation for forcible sexual penetration, the court may order that you attend sex offender counseling. If you committed the offense while under drug or alcohol influence, you may be required to participate in counseling for drug addiction.
  • Restraining order. The court may issue a restraining order against you if you commit a crime of forcible sexual penetration on a domestic partner. This order requires you to avoid physical contact or communication with the victim.

Although your probation sentence will help you avoid incarceration, you must follow the conditions. A violation of one or more probation conditions could result in revocation and the reinstatement of the prison sentence.

A probation sentence requires you to be tied to the court system for the entire probation period, which could be difficult for some individuals. You can decline the probation sentence if you cannot follow these terms. This means that you will serve your prison sentence.

Sex Offender Registration After a Conviction for Forcible Sexual Penetration

The most dreaded consequence of a conviction for forcible sexual penetration is the requirement to register as a sex offender. California operates a three-tier sex offender registration system. The lowest level of sex-offender registration is Tier 1, which requires offenders to renew their status for up to ten years.

Serious sex crimes fall under tier-three sex offender registration and will remain on the registry for a lifetime. Registering as a sex offender requires you to provide identification information to the law enforcement department in your city or residence. You must enter the registry immediately after your release from incarceration.

If you are in transit or have relocated to another area within the state, you must update the registration. Being on the sex offender registry is shameful and can impact other aspects of your life. Being a sex offender restricts where you can live or work. This could affect your personal and professional lives.

Collateral Consequences of a PC 289 Conviction

Your conviction for forcible sexual penetration will appear on your criminal record. In California, a criminal conviction is accessible to the public. Each person who is interested in your criminal history can find the conviction. In addition to being a felony, a violation of PC 289 is a felony and can affect your life in the following ways:

  • Difficulty obtaining or retaining employment. Employers in California perform routine background checks on potential employees before offering a job. If the employer finds the PC 289 conviction and sex offender registration on your record, they could be reluctant to provide you with the position. If you already have a job, you could lose it after the conviction. This will not only affect your career but also your livelihood.
  • Loss of your professional license. The licensing boards are strict for professionals who need a license to practice. With the mandatory reporting requirement, you must notify the board of your convictions. A conviction for a sex crime is a shameful occurrence that could result in the loss of your license.
  • Difficulty being accepted into an education program. You could find it challenging to enter an education program or receive government funding with a Penal Code 289 conviction on your record.
  • Difficulty securing housing. You will be registered as a sex offender after a conviction for violating PC 289. As a sex offender, the law restricts where you can live. Finding appropriate housing where the landlord will take you could be challenging.

Viable Defenses Against Penal Code 289 Charges

The stakes are high for defendants facing charges of forcible sexual penetration. If you are arrested and charged under PC, you can fight the charges and avoid a conviction. The most favorable outcome in a sex crime case is a dismissal of your charges.

Your lawyer can convince the prosecution to lower your sentence if this is impossible. This could be done by presenting mitigating factors in the case. Common defenses available under this statute include the following:

False Allegations

A sex crime conviction has severe legal and collateral consequences. Unfortunately, many sex crime charges are based on false allegations. Like rape, a person could commit a crime of forcible sexual penetration in a secluded area or while concealing their face in a mask. This could be challenging for the victim to correctly describe the perpetrator's appearance.

You could face false allegations if your race and physical description match the perpetrators. Another factor that could contribute to false allegations under this statute is when a person is driven by anger, jealousy, or revenge to lie to law enforcement officers.

You will need a knowledgeable lawyer to help you fight the false allegations. By cross-examining the victim and other witnesses, your attorney can uncover the false claims and help you avoid a conviction. Additionally, you can provide an alibi for your exact location when the crime occurred.

No Sexual Penetration

The prosecution must prove that you penetrated the vagina or anus of the alleged victim with a foreign object to secure a conviction under Penal Code 289. You could argue that while the touching occurred, there was no sexual penetration. Although you will not be convicted of forcible sexual penetration, the prosecution will pursue a sexual battery charge.

Unlike object sexual penetration, penetration is unnecessary for a sexual battery conviction. You will face a less severe prison sentence if convicted of sexual battery instead of forcible sexual penetration. You will not need to register as a sex offender for this offense.

You Had the Plaintiff’s Consent

The critical element of Penal Code 289 is using force or violence to engage in objective sexual penetration with another person. You will only be found guilty if the alleged victim did not consent to the act. If the prosecution cannot prove beyond a reasonable doubt that the victim did not give their permission, you will not be convicted.

When using the consent defense in your case, you must understand that children under eighteen cannot consent to a sexual act. Therefore, if you are charged with forcible sexual penetration with a minor, you cannot apply this defense to your case. Additionally, disabled and unconscious individuals cannot consent to any sex act.

Reasonable Belief that the Victim Consented

Some people change their minds in the middle of a sexual act. If the alleged victim did not communicate their change of mind, you can argue your case using their initial consent. You can claim that you reasonably believed they were okay with the act.

Violation of your Constitutional Rights

Investigations for forcible sexual penetration begin when law enforcement officers receive a report from a victim about the crime. Police officers are aggressive when investigating sex crimes. The investigation will include aggressive interviews and tactics to discover the truth.

Especially in cases involving minors, the police have societal pressure to establish and arrest the liable party. This could cause the officers to use illegal tactics against them. This includes coerced confessions and unlawful searches of your person or property. After an arrest, the officers must read your Miranda rights before an official interrogation. Failure to do this could cause you to provide incriminating information.

If police officers violate your constitutional rights during their investigations, you can petition the court to dismiss some of the evidence collected. This could weaken the prosecutor’s case and increase your chances of avoiding a criminal conviction.

Insufficient Evidence

When you face charges for object sexual penetration in California, the prosecution must prove all the elements of the crime beyond a reasonable doubt. This could be done by presenting physical, circumstantial, or witness testimony. Before the trial, your attorney has the right to review all the evidence the prosecution has against you.

Creating reasonable doubt in one of the elements could weaken the prosecution’s case. In this case, you can argue that they lack enough evidence to prove you committed the crime. The court may throw out a case based on insufficient evidence or result in a lesser conviction.

For example, if the prosecution argues that you engaged in objective sexual penetration with another person, they must have clear, convincing evidence to support this element. Evidence of sexual touching on its own cannot attract a conviction. Instead, that evidence is not enough to prove sexual battery, which is a less severe crime.

Crimes Related to Forcible Sexual Penetration

A violation of Penal Code 289 is a serious sex offense. The prosecution can charge you with the following related crimes together with or instead of forcible sexual penetration:

Rape, California PC 261

Under California PC 261, rape means using force or violence to engage in non-consensual sexual intercourse with another person. Rape is one of the most serious sex crimes and has these elements:

  • You engaged in sexual intercourse with someone else.
  • You engaged in the act against the other person’s will.
  • You used force, threats, or violence to engage in the act.

The prosecution can charge you with rape instead of forcible sexual penetration if the penetration involves the vagina of one person and the penis of another. Like forcible sexual penetration, rape is always charged as a felony. You will serve a prison sentence of up to eight years for rape in California. Additionally, you must register as a sex offender.

Statutory Rape, California PC 261.5

California PC 261.5 makes it an offense to engage in sexual intercourse with a child under eighteen years of age. Unless you are married to the victim, having sex with a child will result in serious criminal charges. Since children cannot consent to a sexual act, you cannot avoid liability under this statute by arguing that the victim consented.

Statutory rape is charged as a misdemeanor or a felony. Some factors that will impact the nature of your charges include your criminal history and the difference in age between you and the victim. When charged as a misdemeanor, a PC 261.5 conviction will result in a jail sentence of up to one year. A felony conviction, on the other hand, can see you spend sixteen months, two, or three years in state prison.

Find a Competent Sex Crimes Defense Lawyer Near Me

In California, law enforcement officers and prosecutors have low tolerance for sex-related offenses. You will face an arrest and charges under PC 289 if there is probable cause to believe you engaged in objective sexual penetration with another person against their will. Before you face a conviction for the offense, the prosecution must prove all the elements of the crime.

This is done by presenting physical evidence, circumstantial evidence, and witness testimonies for your case. Forcible sexual penetration is a serious felony with devastating consequences for your future. You will spend significant time behind bars if you are convicted of the offense. Additionally, your name will be entered in the sex offender registry.

Not all arrests under PC 289 result in convictions. With the insight of a knowledgeable defense attorney, you can fight the charges and avoid the consequences of a conviction. If you face an arrest for a sex crime in Fresno, CA, you will benefit from our expert guidance at California Criminal Lawyer Group. Call us today at 559-712-8377 to discuss your case.