Information on the crime of sodomy with a person under eighteen (18) years of age is found at California penal code § 286(b)(1). This article covers the law, punishment, and common defenses related to PC 286(b)(1). For additional information, contact our sex crimes criminal defense attorneys.
Note: Sodomy is the legal name for anal intercourse (medical term), or anal sex (neutral slang term). The word sodomy is Biblical in origin and opponents of the use of the word “sodomy” as a legal definition for anal intercourse indicate that the word inaccurately refers to sinful conduct (city of ancient and sinful city of Sodom). Thus, the medical term for sodomy, “anal intercourse,” is preferred. To that end, the term sodomy will be used throughout when referring to the law, but examples in this article will include the preferred and synonymous terms “anal intercourse,” and “anal sex.”
PC 286(b)(1) Law
…any person who participates in an act of sodomy with another person who is under 18 years of age is guilty of sodomy of a minor (PC 286(b)(1)
Sodomy Defined: Sodomy is sexual conduct consisting of contact between the penis of one person and the anus of another person. Any sexual penetration, however slight, is sufficient to complete the crime of sodomy (PC 286(a)).
Sodomy can only be committed by a man; however, the victim of PC 286(b)(1) can be a man or a woman. Also, full penetration of a man’s penis into the anus of a minor is not required for prosecution under PC 286(b)(1). Evidence of mere touching between the anal area and the defendant’s penis is sufficient sexual contact to charge PC 286(b)(1) allegations.
Example: Jack and Jill are in a dating relationship. Jack is twenty-one (21) years old, and Jill is seventeen (17) years old. During a night of passion, Jack attempts to have anal sex with Jill. Jill agrees to the anal intercourse, but when Jack begins to press his penis against Jill’s anus Jill become scared that anal sex will hurt her, and she does not want to follow through with have anal sex. Jack ceases his attempt to have anal sex with Jill.
Result: Jack has committed the crime of sodomy with a minor. This is true even though Jack never penetrated Jill anus because the mere touching of Jill anus with Jack’s penis is sufficient for PC 286(b)(1) charges.
In the above example, it does not matter that Jill agrees to have anal intercourse with Jack. This is because Jill is legally too young to consent (agree) to anal intercourse. In California, the legal age of consent to sexual conduct is eighteen (18). The age of consent rule does not apply to person who are legally married and engage in consensual anal sex.
Example: Jack and John are legally married in a state where the legal age for marriage is sixteen (16). Jack is twenty (20) years old, and John is seventeen (17) years old. Jack and John move to California and engage in consensual anal intercourse.
Result: John is not guilty of sodomy of a minor because Jack and John are legally married and the age of consent prohibition against anal sex does not apply to legally married couples.
PC 286(b)(1) Punishments
Classification of Crime: Sodomy with a person under the age of eighteen (18) is a “wobbler” offense in California. A “wobbler” offense is any crime that may be charged either as a misdemeanor, or alternatively as a felony. Thus, the crime “wobbles” between two classifications.
Felony PC 286(b)(1) Incarceration: When sodomy with a person under eighteen (18) years of age is charged as a felony, the defendant may face up to sixteen (16) months, two (2) years, or three (3) years in a California state prison. A probation sentence without incarceration may be available after a PC 286(b)(1) conviction in some cases (See PC 286(b)(1) Probation Sentence).
Length of Prison Options: The length of prison chosen by the sentencing judge (sixteen (16) months, two (2) years, or three (3) years) depends on many factors, including the relationship between the minor and the defendant, the harm caused to the minor, the level of sophistication used to commit the offense, the level of maturity of the minor, the defendant’s criminal history, the desire for prosecution by the minor or the minor’s parents, the terms of any negotiated plea bargain between the defendant and the district attorney, and more.
Prison Presumptive: If the defendant is convicted of sodomy with a person under eighteen (18) years of age (a minor), then the judge must sentence the defendant to either a probation sentence (See PC 286(b)(1) Probation Sentence), or a prison sentence. The court may not sentence the defendant to serve time in a local county jail unless the defendant is granted probation.
Example: Bill is convicted of a felony PC 286(b)(1). The court finds good cause to grant Bill a probation sentence, as opposed to a prison sentence; however, the court orders Bill to serve a county jail sentence of three (3) months as a “term of probation.” In this example, Bill may serve time in a local county jail because the judge granted him probation; however, if the judge did not grant Bill a probation sentence, then Bill must serve no less than sixteen (16) months in a California state prison.
Split & Suspended Sentence: No “split” or “suspended” prison sentence is allowed after a PC 286(b)(1) conviction. A “split” prison sentence is a prison sentence that is split between in-custody and out-of-custody (on work release). A “suspended” prison sentence is a prison sentence that is not actually served unless the defendant violates a term of his probation sentence (PC 1170(h)).
Misdemeanor PC 286(b)(1) Jail: If found guilty of misdemeanor sodomy of a minor, the defendant may face up to a one-year county jail sentence.
PC 286(b)(1) Probation Sentence: A probation sentence is a period of supervision, as opposed to a prison sentence or a jail sentence. A probation sentence is allowed in both felony and misdemeanor cases of PC 286(b)(1), but in felony PC 286(b)(1) cases, the judge must find “special” circumstances that justify a probation sentence. The criteria of “special” circumstances is not required before the granting of a probation sentence in misdemeanor PC 286(b)(1) cases.
Special Circumstances for Probation: As stated, the defendant may be granted a probation sentence after a felony conviction of sodomy with a minor, but only if the judge finds “special” circumstances exist in the case to justify a probation sentence. “Special” circumstances include, but are not limited to, the following:
The lack of significant criminal history for the defendant,
The lack of physical harm to the minor,
The otherwise positive relationship between minor and defendant,
The lack of desire for prosecution by the minor,
A showing of remorse by the defendant,
The ability, and likelihood, of the defendant to obey conditions of probation,
The maturity level of the victim, and more.
Probation Conditions: If the defendant is granted a probation sentence in any penal code 286(b)(1) case, the “conditions of probation” will include criminal protective orders against the defendant and in favor of the minor, restitution to the minor (for financial loss, if any), the payment of court fines and fees, the obligation to remain free from new criminal violations (misdemeanor or felony violations), and more. A violation of the condition of probation may result in the defendant being sentenced to prison.
Note: A felony probation sentence is supervised by a felony probation officer. The felony probation officer will make “conditions of probation” that best fits the needs of protecting the community as well as punishing the defendant. A misdemeanor probation sentence is monitored by the court (informal probation), and there is generally no need to continue to check in with a probation officer.
Work Release: If the defendant is granted a probation sentence in any PC 286(b)(1) cases, there is a good chance that the judge will include a jail sentence as a “term of probation.” However, unless otherwise stated, this jail sentence may usually be served alternatively on work release or house arrest, as opposed to being served in actual confinement.
Good Conduct Credits: Incarceration for either felony or misdemeanor violations of sodomy against a minor may be reduced by up to fifty percent (50%) if the defendant conducts himself with good behavior while in custody.
Example: Sam is convicted of having anal sex with a minor, a felony (PC 286(b)(1)). Sam is sentenced to prison for the low term of sixteen (16) months. While in prison, Sam conducts himself with “good behavior.”: Result: Sam’s prison sentence will be reduced to eight (8) months due to his “good conduct” while in prison (PC 4019).
Sex Offender Registration: Both felony and misdemeanor violations of PC 286(b)(1) require sex offender registration pursuant to penal code 290. The length of sex offender registration is generally ten (10) years form the date of release from custody in misdemeanor PC 286(b)(1) cases [Tier One], and twenty (20) years from the date of release from custody in felony PC 286(b)(1) cases [Tier Two]. This length of time may be extended under certain conditions.
For more information on sex offender registration related to sodomy with a victim eighteen (18) years of age or under, see PC 290 Requirements, Tier System for CA Sex Crimes, & Petition to Terminate Sex Offender Registration.
Three Strikes Application: Sodomy with a person under the age of eighteen (18) is not a “strike” offense under California’s Three Strikes Sentencing Law. Additionally, penal code 286(b)(1) is not considered a “serious” or “violent” offense, as those terms are used in the California penal code at 1192.7 and 667.5, respectively. As a non-strike offense, multiple convictions of PC 286(b)(1) may be served concurrently.
Example: David is convicted of three (3) felony counts of penal code 286(b)(1). David is sentenced to the “presumptive” prison term of two (2) years for each count (i.e., count 1 = 2 years; count 2 = 2 years, and count 3 = 2 years). The judge has discretion to order the defendant to serve the prison sentence related to each count “concurrently,” so that David serves no more than two (2) years in prison for all three counts.
Note: In the above example, the judge has other sentencing options that may extend the length of prison for David, but the judge will not sentence David to “consecutive” sentencing. Sentencing options for PC 286(b)(1) crimes can be complex. For more information on PC 286(b)(1) sentencing options, contact our sex crimes criminal defense attorneys.
State Restitution Fine: In addition to any punishment after a conviction for sodomy with a minor, the judge may assess a fine not to exceed seventy dollars ($70) against the defendant, with the proceeds of the fine to be paid to the State Restitution Fund. The court will take into consideration the defendant’s ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine (PC 286(m)).
Additional Punishments: In addition to the punishments listed above, if found guilty of PC 286(b)(1), the defendant may face additional direct and indirect penalties and consequences, including the loss of a professional license, the loss of immigration status (deportation from the U.S.), the loss of military status (discharge from the military), the impeachment of defendant’s credibility in future legal cases, the loss of firearm rights (felony cases), the loss of family law rights to adopt, the loss of residency options, and more.
PC 286(b)(1) Defenses
Common defense to a charge of unlawful sodomy with a minor include insufficient evidence to prove the element of PC 286(b)(1), reasonable mistake of victim’s age (See Reasonable Mistake of Age), statute of limitations, coerced confessions, illegal search and seizure, impeachment of scientific evidence or witness credibility, failure to properly and timely Mirandize defendant before confession or statement against interest, jury nullification, and more.
Defense of Consent: The defense of consent is not available in sodomy against a minor under eighteen (18) years of age. This is because a minor is not legally capable of consenting to anal sex in California, unless the minor is legally married to the defendant before the act of anal sex occurred. Therefore, even if the minor “agrees” to anal sex, that agreement is not valid in California.
Reasonable Mistake of Age: It is a defense to a charge of PC 286(b)(1) if the defense can show that he was reasonably mistaken as the age of the minor and he believed that the minor was eighteen (18) years or older before he engaged in non-forceable anal intercourse with the minor.
Example: Gary meets Veronica at a party. Gary is twenty (20) years old, and Veronica is seventeen (17) years old. Veronica misrepresents her age to Gary at the party and she tells him that she is eighteen (18). Gary believes Veronica is eighteen (18) based on her maturity level and her statement to the same. After a short dating period, and while Gary is still under the reasonable impression that Veronica is eighteen (18) years of age, Gary and Veronica engage in non-forceable anal sex.
Result: Gary has a valid defense to a criminal charge of sodomy with a minor because he reasonably and honestly believed that Veronica was at least eighteen (18) years of age before he engaged in anal sex with Veronica.
Reclassification of Crime: A defendant may request that his felony sodomy charges be reduced to misdemeanor charges in PC 286(b)(1) cases. The defendant may request this reclassification over the district attorney’s objection. A reclassification from a felony to a misdemeanor violation is proper where the interest of justice is best served for the reduction of the crime’s classification.
Example: Jeff is charged with a felony violation of sodomy with a minor under eighteen (18) years of age. In his effort to convince the judge that his felony charge should be reduced to a misdemeanor charge, Jeff asserts to the court that he has no criminal history, the age of the victim is near the age of consent, there is no physical harm caused to the minor, the minor and the defendant were in a dating relationship, and the minor does not desire prosecution. Under these facts, the judge may use his or her discretion to reclassify the felony charge to a misdemeanor charge (PC 17(b)).
For more information on the crime of sodomy with a minor under the age of eighteen (18) years of age, or California penal code 286(b)(1), contact our sex crimes criminal defense attorneys today for a free consultation. Our award-winning criminal defense trial attorneys have successfully helped hundreds of criminal defendants in the I.E.
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