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PC 286(g) Sodomy with Incompetent Person: Law, Punishment, & Defense

California penal code 286(g) includes information on the crime of sodomy of an incompetent person. This overview adds information about PC 286(g) that is not found in that code section, including information related defense of PC 286(g) crimes and punishment other than incarceration. For further information, contact our sex crimes criminal defense attorneys for a free consultation.

PC 286(g) Law

…a person who commits an act of sodomy, and the victim is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act, is guilty of sodomy with an incompetent person (PC 286(g) Abbrev.).

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)). Ejaculation is not required for the crime of sodomy to be committed (Calcrim 1030).

Note: Sodomy is more commonly referred to as either “anal sex” or “anal intercourse,” as the term “sodomy” itself has a negative connotation regardless of whether the anal intercourse is legal or illegal.

A person subject to a conservatorship is not automatically regarded as an incompetent person per PC 286(g). The district attorney must prove, independently from the fact of a conservatorship, that a person is mentally disabled, and/or physically incapable, to the point that the person is incapable of granting valid consent when prosecuting a PC 286(g) case.

Note: PC 286(g) is charged where the defendant is not himself confined to a mental hospital. When sodomy against an incompetent person is charged against a patient in a mental hospital, and the sodomy victim is also confined in the mental hospital, the crime is charged under penal code section 286(h), which carries less harsh incarceration penalties.

PC 286(g) Punishment

Prison Sentence: Conviction for Sodomy of an incompetent victim will lead to either a probation sentence (See Probation Sentence), or a prison sentence of either three (3), six (6), or eight (8) years, depending on the facts and circumstances of the case.

Note: The “facts and circumstances” of the PC 286(g) case that are considered by the court when choosing a proper sentence include, but are not limited to, the level of sophistication used in committing the offense, the defendant’s criminal history, the relationship between the defendant and the sodomy victim, the remorse shown by the defendant, the terms of any negotiated plea bargain, and more.

Prison Presumptive: A conviction for sodomy with an incompetent person will result in a probation sentence or a prison sentence. When probation is not granted after a conviction for penal code 286(g), the defendant must serve his sentence in a California state prison, not a local county jail. In addition, the defendant’s prison sentence may not be “split” or “suspended.” (PC 1170(h)).

Fifty Percent Credit: A prison sentence related to a conviction for sodomy with an incompetent victim may be reduced by up to fifty percent (50%) is the defendant serves his prison sentence with “good behavior.”

Example: John is convicted of penal code 286(g); he is sentenced to the low term (mitigated) prison sentence of three (3) years. John conducts himself with good behavior while in prison. Result: John will be released from prison in eighteen (18) months, or even earlier if he is released early on parole.

Probation Sentence: A probation sentence is allowed in some PC 286(g) cases, but only if the judge finds there are “special” circumstances that justify a non-prison sentence.

The “special” circumstances that justify a probation sentence after a conviction for sodomy with an incompetent victim include, but are not limited to, the defendant’s lack of criminal history, the otherwise good relationship between the defendant and victim, the lack of desire by the incompetent person (or his or her guardian) for prosecution, the showing of remorse and quick acceptance of liability by the defendant (early confession), and more.

Probation Terms: If the defendant is granted a probation sentence after a PC 286(g) conviction, then the terms of his probation will include mandatory sex offender registration, restraint from contacting the victim, payment of restitution to the victim (for any financial loss), obey all laws (no new felony or misdemeanor violations while on probation), and more.

Note: The judge may order a jail sentence as a “term of probation” in any PC 286(g) case; however, a jail term that is ordered as a term of probation is usually much shorter than the prison sentence that could have otherwise been ordered if the defendant was not granted probation and that jail sentence may usually, but not always, be served alternatively on work release or house arrest. This is an exception to the “prison presumptive” rule (See “Prison Presumptive” above).

Three Strike Law: Sodomy of an incompetent person in not itself a “strike” offense under California’s Three Strikes Sentencing Law. Furthermore, PC 286(g) is not a serious or violent offense as those terms are defined at penal code 1192.7 and 667.5, respectively. Nevertheless, a conviction for PC 286(g), after two separate prior “strike” convictions, can lead to a life sentence.

Moral Turpitude Crime: Sodomy of an incompetent person is considered a crime involving moral turpitude (CIMT). Conviction of any CIMT, including PC 286(g), can lead to severe negative consequences for non-United States citizens (deportation from the US), licensed professionals (revocation of license), and military personnel (discharge from the military).

Sex Offender Registration: A conviction for sodomy of an incompetent person requires sex offender registration with the Department of Justice (DOJ). The length of sex offender registration and the exact requirements vary depending on the facts and circumstances of the case and the defendant’s risk of recidivism on a SARATSO or STATIC-99 score.

Additional Punishment: In addition to the penalties and punishments listed above, if found guilty of PC 286(g), the defendant may face civil lawsuits for battery and intentional infliction of emotional distress, court fines and fees, loss of scholarship opportunities, loss of family law rights, loss of living and travel privileges, long and harsh probation or parole conditions, and more.

PC 286(g) Common Defenses

Common defenses to a charge of sodomy with an incompetent victim include insanity defense, reasonable mistake of fact as to the level of incompetency exhibited by the victim, statute of limitations, coerced confession, Miranda Rights violations, impeachment of victim testimony, impeachment of scientific evidence, insufficient evidence to prove sodomy, illegal search and seizure, and more.

Consent: Consent to engage in sodomy is not a defense in PC 286(g) cases. The point of PC 286(g) is that the victim was incompetent to the point where his or her consent is vitiated (rendered not valid).

Post-Conviction Relief: After a conviction for sodomy upon an incompetent person, the defendant may have several post-conviction options, depending on the circumstances of the case, including appeal the criminal conviction, petition the court for a certificate of rehabilitation (PC 4852), motion for a expungement of the criminal charges (PC 1203.4), withdraw his “guilty” or “no contest” plea (PC 1018), request modification of a probation sentence (PC 1203.3), and more.

For more information on the crime of sodomy with an incompetent person, or California penal code section 286(g), contact our sex crimes criminal defense attorneys today for a free consultation. Our successful and award-winning trial attorney will patiently explain your rights and options. We have helped hundreds of defendants charged with every type of misdemeanor and felony sex crime, and we can help you too.


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PC 286(g) Sodomy with Incompetent Person: Law, Punishment, & Defense


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