Are you facing forcible sexual penetration charges? Under Penal Code 289, California regards sex crimes seriously. Whether you are guilty or innocent of the charges against you, you will need a competent criminal defense attorney. The law will render harsh penalties upon conviction for a forcible sexual penetration offense. Also, facing these charges will negatively affect your life, whether innocent or guilty. Sometimes your professional conduct may be questioned, and you may lose significant educational and professional opportunities.
The first step to take when facing these charges is to engage the services of a criminal defense attorney who understands sex crimes and the procedure that police officers use when gathering evidence against you. At Long Beach Criminal Attorney, our team will walk with you throughout the process, gather evidence, and seek expert witnesses who will work to ensure you receive the best possible outcome in your case.
Forcible Sexual Penetration California PC 289
Penal Code 289 makes it a crime to penetrate another person’s vagina or anus with a foreign object without their consent and using threats and force. A conviction for this crime could lead to a 12-year imprisonment period depending on the nature of the crime.
Elements of Forcible Sexual Penetration with a Foreign Object
There are several elements which the prosecution must prove beyond reasonable doubts for a forcible sexual penetration charge to hold in court. These elements include:
- You used a foreign instrument, object, or substance to accomplish the act of forcible sexual penetration.
- You accomplished the act by applying force, threats, duress, fear, menace, or violence.
- You accomplished the act against the victim’s will.
You should note that when it comes to forcible sexual penetration, the act occurs when sexual penetration occurs, whether due to force or when a foreign instrument is used to penetrate the victim’s sexual or intimate parts.
Sexual Penetration with unknown or Foreign Object
When it comes to Penal Code 289, the element of a foreign or unknown object plays a critical role. This means that you accomplished the act of forcible sexual penetration by using a foreign object, instrument, substance, or an unknown object to penetrate the victim’s anus or vagina. In this case, a foreign object can be even your finger or any body part that is not a sexual organ.
The law defines the following acts committed for sexual gratification, arousal, or sexual abuse as sexual penetration:
- Any penetration in the victim’s anal or genital openings however slight.
- Forcing the victim to penetrate another person’s sexual organs, the penetration level doesn’t matter when it comes to these charges.
- Making the victim penetrate their genital parts or anus.
Use of Fear, force, or Duress
For forcible sexual penetration to be held in court, the prosecution must prove that you applied force, fear, threats, or coercion on the victim. In addition, the prosecution has to show that you committed an act of forcible sexual penetration on another person through violence, force, duress, fear, threats to their loved ones, or menace.
When it comes to forcing, it means that you overcame your victim by applying more physical force against them. Menace plays a role when you use threats and make statements that show the victim your intention to harm them. The victim has to have reasonably believed that you would carry out your threats against them or their loved one.
Against the Victim’s Consent
For forcible sexual penetration to be held in court, the prosecution must prove that the victim did not consent. A person can only offer their consent to sexual penetration when they act voluntarily, freely, and clearly understand their actions. Other instances where the law will define sexual penetration as a crime is when the victim is:
- Intoxicated and is therefore unable to resist,
- Unconscious and unaware of the act,
- Legally unable to consent due to either mental, development, or physical disability.
You should note that the fact that you are or were dating, married, in a relationship, or were in an intimate relationship, does not count as consent when it comes to the law. You can also not say that since the victim asked you to use protection, that you had their consent.
Penalties for Forcible Sexual Penetration
Under Penal Code 289, the law imposes severe penalties upon conviction. The severity of your sentence will mostly depend on your age and that of the victim, as well as the nature of the crime. Usually, a conviction will make you face imprisonment for three up to eight years in prison or payment of $10,000 in fines.
However, your sentence may increase depending on the age of the victim. For instance, when you face charges against a minor under 18, your punishment will be harsher. For a minor between 14 and 17 years, you will face an imprisonment period of six up to ten years. If the victim is a child under 14 years, you will face a sentence that will range from eight to twelve years.
Under California PC 289(h), you can face a wobbler charge when you violate a minor aged below 18 years but do not apply force, threat, or duress. This is in most cases where you face forcible sexual penetration against a mentally or physically disabled person. A wobbler offense means that the charge can either be misdemeanor or felony. When you face misdemeanor charges, you will be under misdemeanor probation or serve a one-year jail time. When you face felony charges, the sentence will lead to two-year imprisonment.
It is important to note that when you are facing forcible sexual penetration against an intoxicated person or when you apply fear, threat, or force, then you do not qualify for possible felony probation.
Register as a Sex Offender
In addition to the lengthy prison sentence and high fines, a forcible sexual penetration conviction will require you to register as a sex offender under Penal Code 289. When it comes to sex offender registration, California employs a three-tier system. Three-tier systems consist of three levels of registration, with the lowest level being the first tier. The first-tier level requires a convicted person to register as a sex offender for ten years. The second-tier level requires the convicted person to register as a sex offender for 20 years. Finally, the third-tier level requires the convicted person to register as a sex offender for life.
When it comes to registration as a sex offender, it is essential to note that a judge doesn’t have to impose the registration if the victim is a minor aged at least 14 years. The age difference between you and the minor is within a ten-year window. Most tier-one is wobbler charges under Penal Code 289 (c, f, g, h, and i).
Tier two comes into effect when you offend a person who is incapable of consenting due to mental or physical challenges. Also, when you apply force, threat, and violence while committing the offense, the law requires you to register as a tier-two sex offender. When it comes to the third-tier level, you must have committed the act of forcible sexual penetration against a minor aged less than 14 years. You are more than ten years older than the victim, committed the action by applying duress, threat, force, or when the victim couldn’t give their consent due to intoxication or unconsciousness.
You should note that as a resident of California, you are required to register with your local police of the county or city you reside in as a sex offender. In addition, the law requires you to renew your sex offender registration every time you move to a new residence and every year, five working days within your birthday. Failure to do so will make you face a felony offense.
Apart from serving jail time, paying fines, and registering as a sex offender in California, there are other repercussions that you will receive upon a conviction. For example, you may lose some of your rights like:
- Right to hold public office
- Right to serve in armed forces
- Right to hold or retain specific professional licenses
- Rights to gun ownership and possession.
Legal Defenses to Forcible Sexual Penetration
You may be facing sexual charges due to various reasons, sometimes due to false accusations, mistaken identity, among others. The prosecution has to prove that you committed that crime. Hiring a qualified attorney is one step towards establishing your innocence or lessening your sentence. Some of the legal defenses that your attorney can use may include but are not limited to:
The Victim Gave Consent
For a forcible sexual penetration charge to hold in court, the prosecution has to prove beyond reasonable doubt that the act was against the victim’s will. Unfortunately, demonstrating a lack of consent is one of the most complex parts to prove in court, and in most cases, the allegations boil down to narratives.
False Accusations
It’s sad to note that most people face sex crimes due to false allegations. For example, you may be facing a sex crime when your current or former partner accuses you falsely. But, most of the time, false accusations occur when one partner wants to have the upper hand during a child custody case or with a contested divorce.
Your defense attorney should develop a defense to ensure you receive a lesser sentence or dismiss the charges. For instance, if the act did not involve the use of force, coercion, threats, your attorney can have the charge reduced from felony to misdemeanor.
You Believed that the Victim Gave Consent
You can use this defense if you reasonably believed the victim gave their consent. Though a no simply means no, sometimes you may be facing forcible sexual penetration charges due to misunderstanding or a mistake. Your attorney may convince a jury that you reasonably believed the victim consented. For instance, if you were both intoxicated, you may act believing your partner consented to the act. But if you had no reason to suspect or know that the person could not consent legally, then you can use it as a defense.
Similar Crimes to Forcible Sexual Penetration
Some other sex offenses are charged together with forcible sexual penetration. Some of these crimes include:
Forcible Rape, California PC 261
California PC 261 defines rape as the nonconsensual sexual penetration where force, threat, or violence is used. The main difference between rape and forcible sexual penetration is that in a rape case, actual sexual intercourse must take place. In addition, a rape conviction will lead to an imprisonment period ranging from three up to eight years.
Sexual Battery, PC 243.4
California PC 243.4 defines sexual battery as the offense of touching a victim’s intimate parts against their will for sexual gratification, abuse, or arousal. Sexual battery can be charged as a misdemeanor or felony offense depending on the circumstances of the case since it is a wobbler offense. You will be facing a maximum four-year sentence when you are convicted of a felony offense.
Forceful Oral Copulation, Penal Code 287
Penal Code 287 defines forceful oral copulation as the act of committing an oral sex offense against another person by applying force, fear, or threats. Since most cases involve various sexual acts, you will find that most times, oral copulation is charged together with forcible sexual penetration. The penalty for oral copulation is imprisonment that ranges from three to eight years. Sometimes the sentence may go up to twelve years if the victim happens to be a minor.
Sodomy, Penal Code 286
Penal code 286 defines sodomy as a sexual crime that involves contact between the victim’s anus and the penis of the offender. When it comes to sodomy, the degree of penetration doesn’t matter, for as long as there is slight penetration, the charge will hold in court.
Sodomy penalties include imprisonment, and the duration will vary depending on the nature of the crime and the victim’s age. For example, when the victim is a minor under 16 years and an adult above 21, the sentence will range from 16 months to three years. When the age difference between the victim and the offender is more than ten years, and the victim happens to be a minor aged below 14 years, the sentence will range from three to eight years.
Contact a Long Beach Criminal Attorney Near Me
Facing sexual crimes is a serious offense in California, and a conviction could lead to lengthy imprisonment, tarnishing your good name, and many educational and professional doors close on you. In addition, whether the law will find you guilty or not, sexual crimes will make you face ridicule from friends and colleagues before the case is resolved.
The prosecution will always go for the maximum possible sentence when it comes to any sex crime. This, therefore, calls for a reputable criminal defense attorney at your corner. Someone who understands the workings of the judicial system, the procedure the law enforcement uses to gather evidence against you. At the Long Beach Criminal Attorney, we will help you build the necessary defense to ensure you receive the best possible outcome. Don’t hesitate to contact us at 562-308-7807 and set up your consultation.