Sodomy with a person under sixteen (16) years of age is charged as a felony in California (PC 286(b)(2). This review illuminates the law, penalties, & common defense strategies related to PC 286(b)(2). For further information, contact our sex crimes criminal defense attorneys for s free consultation.
To begin, “sodomy” is sexual conduct consisting of contact between the penis of one person and the anus of another person (PC 286(a)). The medical term for sodomy is “anal intercourse.” The most common colloquial term for sodomy is “anal sex.”
PC 286(b)(2) Law
... any person over 21 years of age who participates in an act of sodomy with another person who is under 16 years of age shall be guilty of sodomy of a minor under sixteen (16) [PC 286(b)(2) Abbrev.].
Per PC 286(b)(2), the crime is not charged if either the defendant is twenty-one (21) years of age or younger, or the minor is sixteen (16) years of age or older. Of course, criminal sodomy charges other than PC 286(b)(2) may apply when the defendant is twenty-two (22) years of age or older, or the minor is sixteen (16) years of age or older.
Note: Any sexual penetration, however slight, is sufficient to complete the crime of sodomy.
Attempted Sodomy: To attempt sodomy of a person under sixteen (16) years of age is also a felony. The criminal charge for attempted sodomy of a person under sixteen (16) is PC 664/286(b)(2)).
PC 286(b)(2) Punishment
PC 286(b)(2) Incarceration: A conviction for sodomy of a minor under sixteen (16) years of age can result in a prison sentence of up to sixteen (16) months, two (2) years, or three (3) years, depending on the facts and circumstances of the case. A probation sentence, as opposed to a prison sentence, may be available in some PC 286(b)(2) cases (See PC 286(b)(2) Probation Options).
Note: Whether the judge sentences the defendant to a probation sentence, a sixteen (16) month prison sentence, a two (2) year prison sentence, or a three (3) year prison sentence, depends on the presence or absence of any mitigating or aggravating factors related to the facts of the case.
Mitigating & Aggravating Factors: The mitigating and aggravating factors the court will consider in choosing the appropriate sentence after a PC 286(b)(2) conviction include the defendant’s criminal history, the relationship between the minor and the defendant, the harm caused to the victim, the desire for prosecution by the minor, the level of sophistication used in committing the offense, the amenability of the defendant to serve a probation sentence, and more.
Prison Presumptive: If the defendant is denied probation after a penal code 286(b)(2) conviction, then his incarceration must be served in a California state prison, as opposed to a local county jail. Also, the defendant’s prison sentence may not be split (prison sentence served partially out of prison on work release) or suspended (not served unless the defendant violates any term of his out-of-prison release).
Reduced Prison Sentence: A prison sentence after a conviction for sodomy of a minor under sixteen (16) years of age may be reduced by up to fifty percent (50%) for good behavior while in prison (PC 4019).
Example: John is convicted of PC 289(b)(2). John is denied probation and he is sentenced to a low-term prison sentence of sixteen (16) months. If John serves his prison sentence with good behavior, then his prison sentence will be reduced to eight (8) months (50% of 16 months). However, no part of John’s eight (8) month prison sentence may be served out of prison on work release or house arrest (PC 1170(h)).
PC 286(b)(2) Probation Options: Probation, as opposed to a prison sentence, is allowed after a conviction for sodomy of a person under sixteen (16) years of age, but only if the judge determines that “special” circumstances exist that justify a probation sentence.
Special Circumstances: The “special” circumstances that justify a probation sentence after a conviction for PC 286(b)(2) include the lack of criminal history for the defendant, the showing of remorse by the defendant, the otherwise positive relationship between the defendant and minor, the lack of desire for prosecution by the victim and the victim’s parents, the lack of sophistication used in the offense, and more.
Sex Offender Registration: A conviction for sodomy with a minor under sixteen (16) years of age requires sex offender registration (PC 290). The length of sex offender registration depends on several factors in PC 286(b)(2) cases. For more information, see Tier Levels for Sex Offender Registration, Sex Offender Registration Requirements, and Petition to Terminate Sex Offender Registration.
Crime Involving Moral Turpitude: Sodomy of a minor less than sixteen (16) years of age is classified as a “crime involving moral turpitude.” A crime involving moral turpitude is any crime that is considered morally wrong. Crimes involving moral turpitude, including PC 286(b)(2) crimes, carry severe negative consequences for non-United States citizens (deportation), licensed professionals (revocation of license), and military personnel (discharge from military).
Three Strikes Application: The crime of sodomy with a child under the age of sixteen (16) is not a “strike” offense per California’s Three Strikes Sentencing Law. As such, PC 286(b)(2) is not classified as a “serious” offense (PC 1192.7) or a “violent” offense (PC 667.5). However, if the defendant has suffered two (2) prior strikes before his conviction for PC 286(b)(2), then his PC 286(b)(2) conviction can “trigger” a third “strike,” resulting in a life in prison sentence.
Additional Punishment: In addition to the punishment(s) and penalties listed above, if found guilty of PC 286(b)(2), the defendant could suffer court fines and fees, criminal protective orders in favor of the minor, restitution ordered for the minor’s financial loss, loss of firearm rights, loss of the right to adopt a child as a stepparent, civil lawsuits, and more.
PC 286(b)(2) Defenses
Common defense used in PC 286(b)(2) cases include statute of limitations, reasonable mistake as to the age of the minor as being of the age of consent (18), coerced confession, illegal search and search, improper or lack of Miranda Warnings before statements elicited by the defendant, insanity, impeachment of witness or victim’s testimony, impeachment of scientific evidence (DNA, fingerprint, serology, seminal fluid, etc.), and alibi defense.
Reasonable Mistake of Age: In PC 286(b)(2) cases, the defendant is entitled to an acquittal if he can demonstrate that he harbored an honest and reasonable belief that the minor was at least eighteen (18) years of age when he engaged in sodomy with the minor.
Note: For mistake of fact to be considered in sodomy of a minor under sixteen (16) cases, the defendant will need to show his belief was honest (subjective perspective), and reasonable (objective perspective).
Defense of Consent: The defense of consent is not available in PC 286(b)(2) cases. This is because a minor under the age of eighteen (18) is not legally capable of consenting to sodomy in California. The age of consent to sexual conduct in California is eighteen (18).
Example: Jack and Jill engage in anal sex after dating for a few months. Jack used no force against Jill when they engage in anal sex; and Jill agreed to have anal intercourse with Jack however, Jack is twenty-two (22) years old, and Jill is only fifteen (15) years old. Result: Jack could be charged with a violation of penal code 286(b)(2) even though Jill “agreed” to have anal sex with him.
Post-Conviction Issues: After a conviction for sodomy with a minor under sixteen (16) years of age, the defendant may have several post-conviction relief options, depending on the circumstances of his conviction, including a petition the court for a certificate of rehabilitation (PC 4852), expunge the criminal conviction (PC 1203.4), appeal the criminal conviction, withdraw the guilty or “no contest” plea (PC 1018), and more.
For more information about California penal code section 286(b)(2), or sodomy with a person under sixteen (16) years of age, contact our sex crimes criminal defense attorneys today for a free consultation. Our experienced and passionate criminal defense attorneys have successfully handled hundreds of misdemeanor and felony sex crimes in the San Bernardino and Riverside County area.
Our team of award-winning sex crimes criminal defense attorneys handle all misdemeanor and felony sex crimes, including lewd and lascivious act upon a child under fourteen (14), annoy or molest a minor, child molestation, sexual battery, prostitution, possession of child pornography, rape by force or fear, continuous sexual abuse of a child, aggravated sexual abuse of a child, lewd act in public (PC 647(a)), kidnap to commit a sex offense (PC 209(b)(2)), and more. Call today!
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