CALIFORNIA PENAL CODE 289 PC – SEXUAL PENETRATION WITH FOREIGN OBJECT

Under California Penal Code 289 PC, the offense of foreign object sexual assault is categorized as a crime against nature. This crime involves the perpetrator inserting any foreign object, substance, instrument, or device other than a sexual organ into the genital or anal opening of another person without their consent, with the intention of sexual gratification.

Forcible penetration with a foreign object is specifically defined as the act of penetrating the vagina or anus of a person using a foreign object without their consent and through the use of force or threats of force. This can include acts committed against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the victim or another person.

While the term “sexual penetration” may typically be associated with rape involving the male sex organ, in the context of Penal Code 289, it refers to the introduction of a foreign object, substance, instrument, or device into the body. This could involve the use of items such as a bottle or a broom handle, as long as they are not medical instruments, which would fall under a different category.

California Penal Code 289 PC: (a) (1) (A) 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.

Source: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN&sectionNum=289.

WHAT IS PENETRATION?

In the context of Section 289, the conventional understanding of “penetration” would involve the insertion of an object or body part into the anal or vaginal opening. However, a significant and groundbreaking case, People v. Quintana (2001) 89 Cal.App.4th 1362, played a pivotal role in redefining the concept of penetration. The Court of Appeal’s ruling in Quintana clarified that penetration, for the purposes of Section 289, encompasses even a slight intrusion of the victim’s genitalia, without requiring significant pain or injury to the victim. This broader definition of penetration means that certain actions that a defendant may not instinctively consider as penetration fall under the definition outlined in Section 289.

ELEMENTS

The key legal elements of sexual penetration by force or fear include the following:

• Committing an act of sexual penetration with another person,
• Achieving the penetration using a foreign object, substance, instrument, or device, or an unknown object,
• The other person not consenting to the penetration, and
• Accomplishing the penetration through force, violence, duress, menace, fear of immediate and unlawful bodily injury, or future threats of bodily harm.

PENALTIES, PUNISHMENT, AND SENTENCING

In California, Penal Code 289 defines forcible sexual penetration with a foreign object as a felony crime. The potential penalties include:

• Formal probation, a prison sentence of 3, 6, or 8 years, and/or a fine of up to $10,000.
• If the alleged victim is under 18 at the time of the offense, the potential prison sentence increases to 6, 8, or 10 years
• If they are 14 years of age or older, and 8, 10, or 12 years if they are under 14.

MANDATORY SEX OFFENDER REGISTRATION

A conviction under Penal Code 289 PC also entails the requirement to register as a sex offender in California. The specific tier of sex offender registration is determined by the circumstances of the case as follows:

• Tier one: Mandatory registration for a minimum of 10 years. This applies to misdemeanor crimes cases and certain felony cases listed under subsections c, f, g, h, and i of PC 289. However, the judge has the discretion to not impose registration requirements in cases falling under PC 289(h) and (i) if the defendant is within 10 years of age of the child and the child was at least 14 years old.
• Tier two: Mandatory registration for 20 years. This applies to felonies committed by threatening retaliation against the victim or others in the future, or when the victim is incapable of giving consent due to a mental disorder, developmental disability, or physical disability.
• Tier three: Mandatory lifelong registration. This applies in cases of penetration by force or duress, when the victim is under 14 and more than 10 years younger than the defendant, when the victim is too intoxicated to consent, or when the victim is unconscious.

DEFENSES

• Consent of the alleged victim: Many cases involve uncertainty regarding the actual consent of the alleged victim. Proving lack of consent beyond a reasonable doubt can be challenging, especially in situations where consent is ambiguous and relies on conflicting accounts.
• Reasonable belief of consent: Demonstrating that you reasonably believed there was consent from the other party can be a compelling defense. Reviewing text messages and communication exchanges to establish the state of mind of both parties can support this defense.
• False accusation: False allegations of sexual assault often stem from personal motives like anger, vengeance, or regret. Providing alibis, surveillance footage, and other evidence to refute the accusations can weaken the prosecution’s case and lead to dismissal.
• Lack of force or threat: If the prosecution fails to prove that the sexual act involved force, violence, menace, duress, or fear beyond a reasonable doubt, this can be a basis for challenging the charges.

IMMIGRATION CONSEQUENCES

Conviction under California Penal Code Section 289, which pertains to forcible penetration with a foreign object, can have severe immigration consequences due to its classification as a particularly serious crime under U.S. immigration law. The immigration implications are significant and multifaceted, affecting a non-citizen’s ability to enter the U.S., remain in the country, and achieve naturalization.

Here’s an overview of the potential immigration consequences for a conviction under this statute:

• Deportation (Removal): A conviction under Penal Code Section 289 is likely considered an aggravated felony if it involves sexual abuse of a minor or results in a sentence of one year or more. The Immigration and Nationality Act (INA) categorizes certain aggravated felonies as grounds for deportation. Even if the offense does not meet the aggravated felony threshold, it could still be classified as a “crime of moral turpitude,” another category that can lead to deportation.
• Inadmissibility: A conviction can render a non-citizen inadmissible to the United States. This means the individual could be denied entry into the U.S., denied the ability to adjust their status to that of a lawful permanent resident, or denied re-entry if they leave the country.
• Denial of Naturalization: A conviction for a crime that is considered an aggravated felony after November 29, 1990, can permanently bar an individual from becoming a U.S. citizen.
• Disqualification from Relief: A conviction under Section 289 may disqualify the individual from certain forms of relief, such as asylum, voluntary departure, or cancellation of removal, which could otherwise allow them to remain in the United States despite issues with their immigration status.

It’s crucial for non-citizens facing charges under California Penal Code Section 289 to consult with an attorney who has expertise in immigration law. If you or someone you know is charged with this crime, it is strongly advisable that you also consult with an immigration lawyer. If you do not have or know of an immigration lawyer, the Tabibnia Law Firm can refer you to one. 

RELATED CRIMES

• Penal Code 287 – oral copulation by force or fear
• Penal Code 261– rape
• Penal Code 243.4 – sexual battery
• Penal Code 286 – Sodomy by force or fear
• Penal Code 236.1 – Human trafficking for sexual purposes
• Penal Code 288.5 – Continuous sexual abuse of a child
• Penal Code 288 – Lewd acts with a minor
• Penal Code 314 – Indecent exposure
• Penal Code 289.3 – Sexual penetration by a foreign object of an unconscious victim
• Penal Code 269 – Aggravated sexual assault

SPEAK WITH CRIMINAL DEFENSE LAWYER FROM TABIBNIA LAW FIRM

If you are convicted of Penal Code 289 forcible sexual penetration with a foreign object, it will have a lifelong impact as you will need to register as a California sex offender. If facing charges related to forcible penetration, it is crucial to promptly seek advice from an experienced and assertive criminal defense attorney. Our experienced Los Angeles sex crime defense attorney possesses the expertise required to advocate for individuals facing severe felony sexual charges. There is potential for negotiating reduced charges or dismissal of the case with the prosecutor. Contact our law firm to explore the specifics of your situation. It may also be feasible to prevent formal charges from being filed through prefiling intervention with the prosecutor.

To learn more about the criminal justice process and to arrange a no-cost consultation, please contact Cyrus Tabibnia at Tabibnia Law Firm 866-713-2159

Sources:

• Penal Code 289 PC – Forcible sexual penetration with a foreign object.
• (CALCRIM) 1046