Information on the crime of sexual penetration by object by force, fear or threats is found at California penal code § 289(a)(1)(A). This brief article covers the laws, punishments, and common defenses related to PC 289(a)(1)(A). For more information on the crime of sexual penetration by object by force or fear, contact our sex crimes criminal defense attorneys today for a free consultation.
PC 289(a)(1)(A) Law
Per California penal code 289(a)(1)(A), any person who commits an act of sexual penetration, when the act is accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of sexual penetration by force or fear (PC 289(a)(1)(A) Abbrev.).
Sexual Penetration Defined: “Sexual penetration” is the act of causing the penetration, however slight, of the genital or anal opening of any person or causing another person to penetrate the defendant’s, or another person’s, genital or anal opening for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object (PC 289(k)(1)).
“Object” Element Explained: An object is any ‘foreign object, substance, instrument, or device except a man’s penis, if it is not known what object penetrated the sex organ’s opening (PC 289(a)(1)(A)).
Note: Sexual penetration by foreign object by force or fear may be charged where the defendant’s penis is used to penetrate the vagina or anus of another person, but only if the victim is unaware, or uncertain as to what penetrated his or her sexual organ.
“Force” Element Explained: Sexual penetration by force where the defendant uses enough physical force to overcome the victim’s will. The victim is not required to continue to physically resist the defendant during sexual penetration where the will of the victim to resist is overcome by the defendant’s use of initial force, or continued force.
“Fear” Element Explained: Sexual penetration by fear is accomplished if the defendant expressed or implied a threat of future force, violence, danger, or even retribution, if the victim physically resists the defendant during sexual penetration. The expressed or implied fear must have been reasonably valid to the victim considering all the facts and circumstances.
Note: PC 289(a)(1)(A) is accomplished by fear if the victim is actually and reasonably afraid.
PC 289(a)(1)(A) Punishment
Classification of Crime: Sexual penetration by foreign object by force or fear charged under penal code 289(a)(1)(A) is always charged as a felony. In other words, there is no misdemeanor version of PC 289(a)(1)(A) like there is with many other sex crimes (i.e., PC 289(a)(1)(A) is not a “wobbler” offense). This speaks to the severity of the offense.
Prison Sentence: If found guilty of sexual penetration by foreign object by force, fear, or threats, the defendant may face either the low prison term of three (3) years, the middle prison term of (6) years, or the “aggravated” prison term of eight (8) years, depending on the circumstances and facts of the case.
Note: County jail is not an option after a conviction for PC 289(a)(1)(A). Any incarceration related to PC 289(a)(1)(A) must be served in a California state prison, and no part of that prison sentence may be served alternatively on work release or house arrest (PC 1170(h) Sentencing).
Serious & Violent Offense: PC 289(a)(1)(A) is classified as a serious and violent offense as those terms are defined in the California penal code at sections 1192.7 and 667.5, respectively. As such, the crime of sexual penetration by foreign object by force or fear is considered a “strike” offense under California’s Three Strikes Sentencing Law.
Note: Any “strike” offense, including convictions for PC 289(a)(1)(A), may lead to longer prison sentences for subsequent felony violations of any crime and/or a life prison sentence if the defendant has previously suffered two prior “strike” offenses before his or her conviction for a third “strike.”
Probation Sentence: A probation sentence is not allowed after a conviction for any penal code 289(a)(1)(A) offense. This means the defendant must be sentenced to prison for no less than three years (low term) after a conviction for PC 289(a)(1)(A).
Sex Offender Registration: Any conviction for sexual penetration by object with force, fear, or threats requires sex offender registration. The length of sex offender registration for PC 289(a)(1)(A) is covered in Tier Levels for Sex Offender Registration in California. The requirements for sex offender registration is covered in Sex Offender Registration Requirements in California.
Crime Involving Moral Turpitude: Sexual penetration by foreign object with force, fear or threat is classified as a crime involving moral turpitude. This means that PC 289(a)(1)(A) is considered a ‘is inherently an immoral crime.’ Crimes involving moral turpitude, including PC 289(a)(1)(A) carry extra consequences for non-US citizens (deportation, denial of US entry, denial of citizenship), licensed professional (denial or revocation of professional license), and military personnel (denial of military entrance or discharge).
Further Penalties: In addition to the punishments and penalties listed above, any conviction for sexual penetration by foreign object by force or fear will result in court fines, restitution to victim for financial loss (medical bills, therapy bills, etc.), civil lawsuits, criminal protective orders to protect future harm to victims, loss of rights to adopt a child, loss of firearm rights, residential restrictions, parole terms for sex crimes, and more.
PC 289(a)(1)(A) Defenses
Every criminal case is different; therefore, the defenses that might apply to a criminal case are different from case to case.
For example, if two defendants are charged with sexual penetration by foreign object by force or fear, and only one of the defendants confessed to the case, then only that defendant needs a motion to suppress an un-Mirandized or coerced confession, if available.
In any event, common defenses to PC 289(a)(1)(A) cases generally include reasonable mistake of fact a to victim’s consent, coerced confession, illegal search and seizure of evidence, alibi defense, insanity, insufficient evidence to prove defendant guilty (i.e., false accusations, unreliable scientific evidence, unreliable witness evidence, etc.), statute of limitation (limited), actual consent to sexual penetration, and more. For further information, see Defenses to Sex Crimes.
Defense of Consent: If the defendant reasonably believed that the other person consented to sexual penetration, then the defendant is entitled to an acquittal of the PC 289(a)((1)(A) charges. The district attorney has the burden to prove that the defendant did not actually and reasonably believe that the other person consented (Calrim #1045 Abbrev.).
Note: Judicial diversion is not available in PC 289(a)(1)(A) cases (PC 1001.95).
Post-Conviction Options: After a conviction for sexual penetration by object by force or fear, the defendant might have several post-conviction relief options including Petition for Pardon to the Governor of California, Appeal the Felony Conviction, Petition the Court for Write of Habeas Corpus (for violations of substantive state and federal law), and more.
For more information on the law, sentence, or defenses related to California penal code 289(a)(1)(A), sexual penetration by object with force, fear, or threat, contact our sex crimes criminal defense attorneys today for free consultation.
Our sex crimes defense lawyers have successfully handled hundreds of misdemeanor and felony sex crimes in the Inland Empire, including sexual penetration cases, lewd and lascivious act upon a child under fourteen (PC 288(a)), oral copulation crimes, sodomy crimes, prostitution, sexual battery, possession of child pornography, and many more. Call today!