PC 289(a)(1)(B) of the California penal code describes the law and punishment related to the crime of sexual penetration upon a child, who is younger than fourteen (14) years of age, by force or fear. This reviews the laws, punishments, and common defenses related to PC 289(a)(1)(B). For further information, contact our sex crimes criminal defense attorneys for a free consultation.
PC 289(a)(1)(B) Laws
Any person who commits an act of sexual penetration upon a child who is under 14 years of age, 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 upon a child 14 years of age or younger by force or fear (PC 289(a)(1)(B) Abbrev.).
“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 so 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)).
“Foreign object, substance, instrument, or device” shall include any part of the body, except a sexual organ (PC 289(K)(2)).
“Unknown object” shall include any foreign object, substance, instrument, or device, or any part of the body, including a penis, when it is not known whether penetration was by a penis or by a foreign object, substance, instrument, or device, or by any other part of the body (PC 289(k)(3)).
Note: When the victim is aware that the penetrating object is, in fact, a man’s penis, then other criminal charges will apply (i.e., sodomy of child under fourteen (14) by force (PC 286(c)(1)); rape of child under fourteen (14) by force or fear (PC 261(a)(2)), etc.
PC 289(a)(1)(B) Punishments
Prison Sentence: Conviction of penal code 289(a)(1)(B) may result in a prison sentence of either eight (8), ten (10), or twelve (12) years, depending on the facts and circumstances of the case.
In most PC 289(a)(1)(B) cases, the defendant will receive the “middle term” prison sentence of ten (10) years upon conviction. However, the judge may impose the low term of eight (8) years if there are sufficient mitigating circumstances in the facts of the case to justify the “low term” of eight (8) years. Alternatively, if the judge finds there are sufficient aggravating factors in the case, then the court may impose the “high term” of twelve (12) years of prison after a PC 289(a)(1)(B) conviction.
Reduced Conduct Credits: A prison sentence related to a PC 289(a)(1)(B) conviction may be reduced when the defendant serves his or her prison sentence with “good behavior.” However, in PC 289(a)(1)(B) cases, the maximum reduction is only fifteen percent (15%). This means that even if the defendant serves his or her prison sentence with good behavior, he or she will be required to serve no less than eighty-five percent (85%) of his or her prison sentence.
Consecutive Sentencing: Every violation of PC 289(a)(1)(B) may lead to a “full and consecutive” prison sentence. For example, if the defendant is charged with three (3) counts of PC 289(a)(1)(B), then he or she is facing up to thirty (30) years in prison [ten (10) years for each of the three (3) PC 289(a)(1)(B) counts to be served one after the other, not “concurrently.”
Probation Sentence: A probation sentence is not available in cases of sexual penetration of a child under fourteen (14) years of age by foreign object with force or fear.
Penal Code 1170(h) Sentence: No part of a PC 289(a)(1)(B) prison sentence may be served alternatively on work release or house arrest (“split” prison sentence). Similarly, no part of a PC 289(a)(1)(B) prison sentence may be “suspended.”
Important: PC 289(a)(1)(B) does not preclude prosecution under PC 288(a) [Lewd and Lascivious Act Upon a Child Under Fourteen (14) Years of Age]. In other words, sexual penetration of child under fourteen (14) years of age by foreign object by force or fear is also a PC 288(a) lewd act crime.
This means the district attorney may charge both PC 289(a)(1)(B) and PC 288(a) for the sexual penetration act against a child under fourteen (14); however, the judge may not impose multiple prison sentences for the same act that constitutes to separate crimes (PC 654).
PC 290 Registration: A conviction for sexual penetration upon a child under fourteen (14) years of age by foreign object by force or fear will require the defendant to register with the Department of Justice (DOJ) as sex offender. Per PC 290(d), sex offender registration for PC 289(a)(1)(B) crimes is for life (Tier Three Registration). For further information, see Sex Offender Registration Requirements.
Crime Involving Moral Turpitude: Sexual penetration by foreign object with force or fear against a child under fourteen (14) is classified as a “crime involving moral turpitude.” A crime involving moral turpitude is any criminal violation that involves immoral behavior or crimes against nature.
Crimes involving moral turpitude, including PC 289(a)(1)(B) convictions, carry severe negative consequences, including immigration consequences for non-US citizens, professional licensing consequences for licensed professionals, and military service consequences for defendants in the armed services.
Other Direct & Indirect Penalties: In addition to the punishments listed above, a conviction for PC 289(a)(1)(B) may lead to restitution orders against the defendant (for victim’s financial loss because of defendant’s crime), criminal protective orders against the defendant, civil lawsuits, extended parole periods, court fines and fees, and much more.
PC 289(a)(1)(B) Defenses
Common defenses incorporated by defendants charged with sexual penetration of a child under fourteen (14) by foreign object by force or fear include insanity defense, insufficient evidence to prove defendant is the person who committed the crime, false allegations, illegal search and seizure of evidence, lack of Miranda Rights issued to defendant before confession, coerced confession, impeachment of reliable witness or scientific evidence, and more. For more information, see Defenses to Sex Crimes.
Consent Defense: The defense of consent does not apply to penal code 289(a)(1)(B) violations. This is because a child under the age of fourteen (14) is too young to consent to sexual penetration. The defense of “reasonable mistake as to the victim’s age” is a defense to PC 289(a)(1)(B) cases but demonstrating the reasonableness as to defendant’s belief that the child was of the age of consent may be very difficult in most PC 289(a)(1)(B) cases.
Statute of Limitations: The statute of limitations, as a defense, applies in sexual penetration upon a child under fourteen (14) cases, but the statute of limitations length is generally very long in PC 289(a)(1)(B) cases, the statute of limitation law for these crimes is complex, and the statute of limitations may even be extended for various reasons in PC 289(a)(1)(B) cases. For more information, see Statute of Limitations in California Criminal Sex Crimes.
For more information on the crime of sexual penetration upon a child under fourteen (14) by foreign object by force or fear, or California penal code section 289(a)(1)(B) PC, contact our sex crimes criminal defense attorneys today for a free consultation.
Our team of experienced and award-winning trial attorneys have successfully handled hundreds of misdemeanor and felony sex crimes in the Inland Empire, including lewd act upon a child under 14, sexual battery, sodomy cases, possess child porn cases, child molestation, sexual penetration crimes, indecent exposure, prostitution crimes, revenge porn crimes, and more. Call today!
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