Information on the crime of sodomy upon a child less than fourteen (14) years of age is found at California penal code section § 286(c)(1). This article discusses the law, penalties, and common defense related to PC 286(c)(1). For further information, contact our sex crimes criminal defense attorneys for a free consultation.
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)).
The medical term for sodomy is “anal intercourse,” and the slang or colloquial term for sodomy is “anal sex.” The term “sodomy” is Biblical in origin and originally referred to the ancient Biblical city of Sodom, where sin and sexual acts between members of the same sex occurred by and between the city’s inhabitant, the Sodomites.
Today, the legal term of sodomy still holds negative connotation for many people. For this reason, the term sodomy is referred to as “anal intercourse” where examples are used.
PC 286(c)(1) Law
Per PC 286(c)(1), any person who participates in an act of sodomy with another person who is under 14 years of age, and more than 10 years younger than the defendant, is guilty of sodomy of a child under fourteen (14), a felony (PC 286(c)(1) Abbrev.).
Note: PC 286(c)(1) is not charged where either the child is at least fourteen (14) at the time of the alleged offense, or the defendant is not more than ten (10) years older than the child at the time of the offense. Of course, other sodomy charges may still apply depending on the age of the child and the age of the defendant (i.e. sodomy of a child under ten (10) [PC 288.7(b)]; sodomy of a minor under sixteen [PC 286(b)(2)], etc.).
PC 286(c)(1) Punishment
Three Strikes Offense: Sodomy of a child under fourteen (14) is a serious and violent offense as defined at California penal code sections 1192.7 and 667.5, respectively. This means that PC 286(c)(1) is considered a “strike” offense under California Three Strikes Sentencing Law. Any “strike” offense, including PC 286(c)(1) crimes, may add significant prison time to the defendant’s prison sentence.
Prison Sentence: Any conviction of sodomy of a minor under fourteen (14) can result in a prison sentence of up to three (3), six (6), or eight (8) years, depending on the presence or absence of any aggravating or mitigating circumstances related to the case.
Example: Devin is convicted of PC 286(c)(1), his criminal defense argues that Devin should receive the low term (“mitigated”) prison sentence of three (3) years because Devin has not prior criminal history and he readily confessed upon initial police questioning. The district attorney argues that Devin should receive the high term (“aggravated”) prison sentence of eight (8) years because Devin showed no remorse when he confessed, and he took advantage of a position of trust when he committed his crime.
Result: The court will consider the arguments of Devin’s defense attorney and the district attorney and make a choice as to what prison sentence best serves the interest of justice.
Plea Bargaining: Plea bargaining is somewhat limited in PC 286(c)(1) cases, especially after the preliminary hearing stage in the case. In any event, the court will consider the terms of a plea bargain arrangement in deciding what length of prison time is appropriate.
Example: Stanly is convicted of sodomy of a child under fourteen (14) years of age. Stanly’s convicted is part of a plea bargain wherein Stanly agrees to plead “guilty” to the PC 286(c)(1) allegation in return for the district attorney’s promise to seek the low term (“mitigated”) prison sentence of three (3) years.
Result: The court will likely not disturb the terms of the plea bargain, and the court will not seek further arguments from the defense attorney or district attorney as to why the parties reached an agreement for a low term (“mitigated”) prison sentence of three (3) years, as opposed to the middle term (“presumptive”) prison sentence of six (6) years.
Prison Presumptive: A conviction for penal code 286(c)(1) requires either a prison sentence or a probation sentence (See PC 286(c)(1) Probation Sentence). If the defendant is not granted a probation sentence, then his incarceration must be served in a California state prison, as opposed to a local county jail. Also, no part of the defendant’s prison sentence may be served out of prison, such as on work release. Finally, no part of a PC 286(c)(1) prison sentence may be “suspended” (Aka “joint suspension”) [PC 1170(h)].
Example: Gary is convicted of sodomy with a child under fourteen (14) years of age. The judge will not grant Gary a probation sentence for various reasons. The judge would like to sentence Gary to county jail, but the law does not allow the judge to send Gary to a local county jail to serve his sentence. Also, the judge is amenable to the idea of allowing Gary to serve half of his prison sentence out of prison on work release; but again, the law does not allow the judge to grant Gary’s request.
Consecutive Prison Sentence: Each violation of PC 286(c)(1) is served “consecutive” to any other felony charge listed in the criminal complaint. This means that the prison sentence related to all of the defendant’s criminal charges may not be served “concurrently,” or “at the same time.” (PC 661.61).
Example: Robert is convicted of two counts of sodomy of a minor under fourteen (14). Robert’s maximum prison exposure in this situation is sixteen (16) years (2 times 8 years for each PC 286(c)(1) count). With consecutive sentencing the judge could have ordered Robert to serve both PC 286(c)(1) sentencing together for a maximum exposure of eight (8) years of prison (or other possible sentencing calculations).
PC 286(c)(1) Probation Sentence: A probation sentence is allowed in some PC 286(c)(1) cases (See PC 286(c)(1) Probation Eligibility).
A probation sentence is a period of supervision, as opposed to a prison sentence. A probation sentence carries “terms of probation” that must be obeyed to stay out of prison and remain on probation. The terms of probation in PC 286(c)(1) case are monitored by a felony probation officer and usually include mandatory polygraph exams, “violate no law” orders, “do not leave the state of California” orders, and more.
PC 286(c)(1) Probation Eligibility: A probation sentence is allowed after a conviction for sodomy upon a child under fourteen (14) where 1) the court finds “special” circumstance exist that justify a probation sentence, as opposed to a prison sentence, and 2) no force was used to commit the sodomy crime.
“Special” Circumstance: The special circumstances that might justify a probation sentence after a PC 286(c)(1) conviction include, but are not limited to, the absence of criminal history for the defendant, the lack of desire to prosecute from the victim and the victim’s parents, the lack of sophistication used in the offense, the otherwise positive relationship between the victim and the defendant (without the defendant taking advantage of a position of trust), the amenability of the defendant to serve a probation sentence, and more.
“Lack of Force”: As stated, the court may only allow a probation sentence, as opposed to a prison sentence, if the defendant used no force to accomplish sodomy of the child. This means no force above and beyond the force required to commit the crime.
Jail Term for Probation: As stated, the judge must sentence the defendant to prison if the judge does not grant a probation sentence to the defendant in a PC 286(c)(1) case; however, if the judge does grant a probation sentence to the defendant, then the judge may order the defendant to serve a jail sentence as a “term of probation.” In this situation, the defendant may serve his incarceration in a local county jail, or in some cases, serve that jail sentence alternatively on work release.
Sex Offender Registration: Sodomy upon a child under fourteen (14) years of age convictions result in mandatory registration as a sex offender. The “Tier Level” is classified as “Tier Three” sex offender registration in California. This means sex offender registration after a PC 286(c)(1) conviction is for life. For more information, see Tier 3 Sex Offender Registration & Sex Offender Registration Requirements.
Note: Neither a certificate of rehabilitation (PC 4852), nor an expungement of criminal record (PC 1203.4) is available to the defendant after a conviction for sodomy with a child under fourteen (14).
Moral Turpitude: The crime of sodomy with a child under 14 is considered a “crime involving moral turpitude.” A crime involving moral turpitude is any offense that involves morally wrongful conduct. These crimes carry further direct and indirect penalties for military service members (discharge or denial of entry into the military), licensed professionals (denial or revocation of professional license), and non-United States citizens (deportation from, or denial of entry into, the United States).
Life Parole: “Parole,” or the early release from prison upon conditions, may be extended from twenty (20) years to life after release from prison in PC 289(c)(1) cases.
Reduced Prison Credits: Prisoners convicted of sodomy of a child under 14 receive less “good behavior” credits while in prison (PC 2933.1). The maximum credits that may earned is no more than fifteen percent (15%) off the prisoner’s sentence.
Example: Joe is sentenced to six (6) years of prison after a conviction for penal code 286(c)(1). Joe serves his prison time with “good behavior.” Nevertheless, Joe’s prison sentence of six (6) years may only be reduced by eleven (11) months (11 months equals roughly 15% of 72 months).
Additional Punishment: In addition to the punishments listed above, if the defendant is found guilty (or plead “guilty) to PC 289(c)(1), he could face any of the following additional punishments and penalties: loss of firearm rights, restitution to victim / child for any financial loss, criminal protective orders (CPO) to keep the defendant away from the victim, civil lawsuits, living and travel restrictions, and more.
PC 286(c)(1) Defenses
Common defenses in sodomy of a child under 14 cases include illumination of the unreliability of victim’s statements or scientific evidence, coerced confession, motive to fabricate, illegal search and seizure, failure to Mirandize suspect before questioning, insanity defense, overall insufficiency of the evidence, and alibi defense.
Defense of Consent: The victim / child’s agreement or “consent” to engage in sodomy is not valid in California. Therefore, it is not a defense to argue that the child under fourteen (14) consented to sodomy, even if the child agreed to engage in sodomy. The age of valid consent to engage in sexual conduct in California is eighteen (18).
For more information on the crime of sodomy against a victim under fourteen (14) years of age, or California penal code section 286(c)(1), contact our sex crimes criminal defense attorneys today for a free consultation. Our award-winning team of criminal defense attorneys have successfully handled hundreds of sex crimes in the Inland Empire.
Our dedicated and passionate attorneys handle all misdemeanor and felony violation of PC 647.6 [Annoy or Molest a Minor]; PC 647(b) [Prostitution]; PC 288(c) [Lewd Act Upon a Child 14 or 15]; PC 243.4 [Sexual Battery]; PC 311.11 [Possession of Child Pornography]; PC 288.5 [Continuous Sexual Abuse of a Child]; PC 287 [Oral Copulation] PC 289 [Sexual Penetration by Foreign Object]; PC 314 [Indecent Exposure], and more. Call today!