Sodom with an intoxicated person is charged under California penal code section 286(i) [PC 286(i)]. This overview discusses the law, the penalties, and the common defenses associated with PC 286(i). For further information, please contact our sex crimes criminal defense attorneys for a free consultation.
PC 286(i) Law
Any person who commits an act of sodomy, where the victim is prevented from resisting by an intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the defendant, is guilt of sodomy with an intoxicated person (PC 286(i) 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) Abbrev.).
Note: Sodomy is often referred to as “anal sex” or “anal intercourse” outside of a legal context.
To prove that the defendant is guilty of PC 286(i), the district attorney must prove all three of the following:
The defendant committed and act of sodomy,
The effect of an intoxicating substance prevented the victim from resisting, and
The defendant knew, or reasonably should have known that the effect of the intoxicating substance prevented the victim from resisting (Calcrim 1032 Summarized).
A person is prevented from resisting if he or she is so intoxicated that he or she is unable to grant legal consent (Calcrim 1032).
Legal Consent: Legal consent occurs where a person can understand and weigh the physical nature of the act, its moral character, its probable consequences, and freely and voluntarily exercise judgement as to whether he or she desires to engage in that act.
Note: An intoxicated person can legally consent to sodomy. It is the level of intoxication that is at issue in PC 286(i) cases, not the fact of intoxication.
Example: John and Rita have a few alcohol beverages at a nightclub. Back at their home, and while feeling the effects of alcohol, John and Rita engage in consensual sodomy. Both John and Rita are not so intoxicated that they cannot legally consent (See Legal Consent above). Result: John is not guilty of PC 286(i).
Reasonable Mistake: The defendant is not guilty of PC 286(i) if he or she actually, and reasonably believed the other person was capable of consenting to sodomy, even if that belief was wrong.
Example: Jacob and Trista engage in sexual intercourse and sodomy while intoxicated. Before and during the act of sodomy, John reasonably believed that Trista was not so intoxicated that she couldn’t validly consent to sodomy, and Trista showed no hesitation to engage in sodomy. Nevertheless, Trista was, in fact, too intoxicated to grant legal consent:
Result: Jacob is entitled to an acquittal because he truly believed (subjective test), and reasonably believed (object test), that Trista was sufficient sober to understand the nature of the act in which she engaged.
PC 286(i) Punishment
Prison Sentence: A violation of sodomy with an intoxicated person can lead to a three (3), six (6), or eight (8) year prison sentence, depending on the circumstances and facts of the case.
Prison Presumptive: A conviction for PC 286(i) will lead to a prison sentence, not a local county jail sentence. Also, that prison sentence may not be “suspended” (not served on condition that the defendant violates no law), or “split” (served partially out of prison on work release).
Probation Ineligible: A probation sentence is not allowed after a conviction or sodomy with an intoxicated person.
Fifty Percent Crime: A prison sentence after a PC 286(i) conviction may be reduced by up to fifty percent (50%) if the inmate conducts himself with “good behavior” while in prison. For example, a prison sentence of eight years after a conviction for PC 286(i) may be reduced to four (4) years with good behavior.
Three Strikes Law: Sodomy with an intoxicated person is not a “strike” offense as those terms are defined in the California law at 1192.7 and 667.5 (“serious” & “violent” felonies, respectively).
Note: Even though PC 286(i) itself is not a “strike” offense, if the defendant has suffered two (2) prior “strike” convictions, before his conviction for PC 286(i), then his conviction for PC 286(i) may trigger a third “strike,” which could lead to a life in prison sentence.
PC 290 Registration: Conviction of sodomy with an intoxicated person requires the defendant to register as a sex offender with the Department of Justice (PC 290). Failure to register as a sex offender after a conviction for PC 286(i) may be charged as separate crime (PC 290(b)). For more information, see Sex Offender Registration Requirements, Tier System for Sex Offenders in CA, & Petition to Terminate Sex Offender Registration.
Attempted PC 286(i): It is possible to be charged with attempted sodomy of an intoxicated person (PC 664/286(i)). To attempt sodomy of an intoxicated is to make a “substantial, but ineffectual step, towards the commission of the crime, coupled with the specific intent to commit the crime.” (Attempted PC 286(i) = trying, but failing, to commit sodomy with an intoxicated person).
Loss of Firearm Rights: The crime of sodomy with an intoxicated victim is a crime that will result in a lifetime ban on the ownership and possession of firearms upon conviction. In some situations, the defendant may restore his firearm rights after a PC 286(i) conviction if he successfully petitions the court for a certificate of rehabilitation.
Crime Involving Moral Turpitude: PC 286(i) is a crime involving moral turpitude. A crime involving moral turpitude is any crime that involves deceit, fraud, or is otherwise considered morally wrong. Crimes involving moral turpitude, including PC 286(i), create massive negative consequences for non-United States citizens (deportation), licensed professionals (revocation of license), and military personnel (discharge from the military).
Further Punishment: Other punishments related to sodomy with an intoxicated person include possible restitution to victim for victim’s financial loss (if any), criminal protective orders (CPO), civil lawsuits, court fines and fees, extended parole lengths, and more.
Note: In addition to any punishment imposed under PC 286, the judge may assess a fine not to exceed seventy dollars ($70) …, The court… shall 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 permitted under this subdivision (PC 286(m) Abbrev.).
PC 286(i) Common Defenses
Every sodomy with an intoxicated person allegation is based on different facts; therefore, there is not one particular defense that fits every PC 286(i) case.
With that said, common defenses to penal code 286(i) cases include insufficient evidence to prove sodomy occurred, insufficient evidence to prove “victim” was intoxicated to the point where or she could not reasonably resist or grant consent, illegal search and seizure, statute of limitations, coerced confession, failure to properly Mirandize defendant before questioning, alibi defense, and more.
Impeachment of Statements: Sodomy with an intoxicated person cases tend to incorporate impeachment of the alleged victim’s statements. Afterall, the alleged victim is asserting that he or she was too intoxicated to resist or grant consent to sodomy; therefore, the same alleged victim might have been too intoxicated to understand the context upon which the defendant relied in believing the alleged victim was not too intoxicated.
Note: This same impeachment can be used to call into question the identity of the defendant where the identity is not corroborated with other evidence (i.e., seminal fluid evidence, DNA, confession, etc.).
Consent Defense: The defense of consent is not available in PC 286(i) cases unless the prosecutor does not prove the alleged victim was too intoxicated to resist or grant consent.
Example: The district attorney does not demonstrate sufficient evidence to prove the alleged victim is too intoxicated to resist or grant consent to the defendant. In addition, the district attorney never presents evidence that the alleged victim communicated a lack of desire to engage in sodomy with the defendant.
Result: Defendant’s reliance on alleged victim’s implied consent (victim’s actions that demonstrated consent), should result in acquittal of the PC 286(i) charges.
For more information on the crime of sodomy with an intoxicated person, also known as “sodomy by intoxicant,” or California penal code section 286(i), contact our sex crimes criminal defense attorneys today for a free consultation. Our team of successful and deeply experienced criminal defense attorneys have helped hundreds of criminal suspects charged with misdemeanor and felony sex crimes in the Inland Empire.
Our award-winning criminal defense attorneys defend all sex crimes charges, including possession of child pornography (PC 311.1 & 311.11), sexual battery (PC 243.4), maintaining a brothel (PC 315), indecent exposure (PC 314), annoying or molesting a minor (PC 647.6(b)), lewd act upon a child under fourteen (PC 288(a)), unlawful sexual intercourse (PC 261.5(c)), prostitution (PC 647(b)), oral copulation (PC 287), sexual penetration (PC 289), child molestation, and more. Call today!