In California, the crime of sexual penetration by foreign object upon an intoxicated victim is charged under penal code section 289(e). This summary covers the law, penalties, and common defenses associated with PC 289(e). If you have been charged with a violation of PC 289(e), contact our sex crimes criminal defense attorneys without delay.
PC 289(e) Related Law
Any person who commits an act of sexual penetration, when the victim is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance (CS), and this condition was known, or reasonably should have been known by the defendant, is guilty of sexual penetration by object upon an intoxicated victim, a felony (PC 289(e) Abbrev.).
Note: How the victim became intoxicated is not an element of the offense. In other words, the defendant may be charged with sexual penetration of an intoxicated person regardless of whether the defendant made any effort to intoxicate the victim.
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, sexual gratification, or sexual abuse by any foreign object, substance, instrument, or device, or by any unknown object PC 289(k) Abbrev.).
Foreign Object Defined: “Foreign object, substance, instrument, or device” shall include any part of the body, except a sexual organ (PC 289(k)).
Unknown Object Defined: “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)).
Victim Defined: “Victim” includes any person who the defendant causes to penetrate the genital or anal opening of the defendant or another person or whose genital or anal opening is caused to be penetrated by the defendant or another person and who otherwise qualifies as a victim under the requirements of this section (PC 289(m) Abbrev.).
Note: The District attorney will charge sexual penetration by foreign object upon an intoxicated victim when the victim is not sure if the penetrating object is a man’s penis. When the victim is certain that it was a man’s penis that penetrated him or her, then the crime of rape by force or fear upon an intoxicated victim or sodomy by force or fear upon an intoxicated is charged, depending on whether the victim alleges vaginal penetration or anal penetration.
PC 289(e) Penalties
Prison Sentence: A defendant who is convicted of sexual penetration upon an intoxicated victim may be sentenced to either three (3), six (6), or eight (8) years in prison (PC 289(e)).
Triad Sentencing Options: As stated, a defendant who is convicted of PC 289(e) may be sentenced to prison for three (3), six (6), or eight (8) years. Whether the judge orders a low term “mitigated” prison sentence of three (3) years, a mid-term “presumptive” prison sentence of six (6) years, or a high term “aggravated” prison sentence of eight (8) years, depends on whether there are any mitigating or aggravating facts related to the case.
Mitigating & Aggravating Sentencing Factors: Mitigating and aggravating sentencing factors related to PC 289(e) cases include the defendant’s criminal history, the level of sophistication used by the defendant to commit the offense, how the victim became intoxicated and to what degree, the harm caused to the intoxicated victim, the remorse shown by the defendant, and more.
Example: John is accused of sexual penetration of an intoxicated person by foreign object (PC 289(e)). The facts of the case indicate that John has no criminal history, the intoxicated person became intoxicated without John’s knowledge or assistance, John was also intoxicated at the time of the sexual penetration, the victim was not physically harmed by the sexual penetration, and John has shown sincere remorse or his actions:
Result: If convicted of penal code 289(e), there exists good cause to sentence him to the low term “mitigated” prison sentence of three (3) years, as opposed to longer prison sentencing options.
Prison Presumptive: A violation of Penal code 289(e) is “prison presumptive.” This means that the defendant may not serve any portion of his or her incarceration in a local county jail, except for prison transport(s) and temporary housing needs between prison transport.
Also, no part of the defendant’s prison sentence may be served on house arrest or work release (“split” prison sentence), and no part of the defendant’s prison sentence may be “suspended.” (PC 1170(h)).
“Good Conduct Credits”: A prison sentence related to PC 289(e) may be reduced by up to fifty percent (50%) is the prisoner serves his or her incarceration with “good behavior.” For example, if the defendant is sentenced to the high term “aggravated” prison sentence of eight (8) years after a PC 289(e) conviction, then the defendant will only serve four (4) years of that prison sentence, so long as he or she conducts himself or herself with good behavior while behind bars.
Probation Denied: A probation sentence is not allowed after a conviction for sexual penetration by foreign object upon an intoxicated victim (PC 1203).
No “Strike” Offense: PC 289(e) is not a “strike” offense under California’s Three Strikes Sentencing Law. This is because the crime of sexual penetration by foreign object against an intoxicated person is not classified as a "violent" offense or a "serious" offense, at least as those terms are defined at California penal code sections 667.5(c) and 1192.7(c), respectively.
Note: Even though PC 289(e) is not a “strike” offense under CA law, the conviction of PC 289(e) can “trigger” a third “strike” if the defendant has suffered two (2) “strike” convictions prior to his or her conviction for PC 289(e). Also, even if the defendant has suffered a prior felony conviction, even if that prior felony conviction was not a “strike” offense, then the defendant may be sentenced to longer periods of prison than the sentencing options listed above.
Moral Turpitude Crime: Sexual penetration by foreign object upon an intoxicated person is classified as a “crime involving moral turpitude.” A crime involving moral turpitude is considered a crime against nature or a crime that involves deceit or fraud. Conviction of a crime involving moral turpitude, including a conviction of penal code 289(e), may lead to severe negative consequences related to the following:
Professional Licensing: A professional license, such as any employment or occupational license issued by a California Board, Bar, or Commission, may be revoked, suspended, or denied after a conviction for penal code 289(e).
Immigration Consequences: A non-United States citizen may be deported from the United States, denied reentry into the United States, or denied naturalization upon a conviction for PC 289(e). These immigration consequences can occur either before or after serving a prison sentence related to the crime.
Military Service: Any conviction for sexual penetration by foreign object against an intoxicated person will result in discharge from the armed services (Coast Guard, Army, Space Force, Marines, National Guard, Navy, Air Force, or Merchant Marines). For defendants seeking military service, any PC 289(e) conviction will render that candidate ineligible for voluntary military service.
Impeached Credibility: A conviction history for PC 289(e) may severely impact a person’s credibility in future legal cases (both criminal and civil cases) because all evidence of moral turpitude crimes is subject to admission in court to impeach the veracity and reliability of the witness’ testimony.
Sex Offender Registration: The crime of sexual penetration of an intoxicated person requires sex offender registration in California. The length of sex offender registration is either a 20-year obligation (Tier 2), or a lifetime obligation (Tier 3), depending on several factors. For more information, see Petition to Terminate Sex Offender Registration (PC 290.5), CA’s Tier System for Sex Offenders, & Sex Offender Registration Requirements in CA (PC 290).
Other Penalties: Other penalties related to PC 289(e) convictions include longer prison sentencing for subsequent felony convictions, loss of firearm rights, criminal protective orders, restitution to victim, civil lawsuits for battery, court fines and fees, loss of scholarship opportunities, loss of certain family law rights, extended parole commitments, and more.
Common PC 289(e) Defenses
Common defenses related to sexual penetration of an intoxicated victim by foreign object include statute of limitations, reasonably mistake of fact as to the victim’s intoxication, illegal search and seizure of DNA evidence, false allegations, impeachment of witness or scientific evidence, coerced confession, failure to Mirandize a suspect before confession, and more.
Impeachment of Victim’s Credibility: When the district attorney charges a PC 289(e) violation against the defendant, then the defendant will already have some level of defense built into the criminal charge. Namely, if the victim was too intoxicated to resist sexual penetration, then he or she may have been too intoxicated to accurately identify the defendant as the suspect. This defense assumes no corroboration of the victim’s allegation, such as other witnesses or DNA corroborating evidence.
Intoxication Defense: An intoxication defense is somewhat limited in PC 289(e) cases, but it can exist where both the defendant and the victim were both severely intoxicated at the time of the alleged sexual penetration, which is not an uncommon circumstance in these types of cases.
Note: The reason an intoxication defense is limited, is that it requires proof that the defendant was so intoxicated at the time of the alleged offense that he or she did not appreciate the difference between right and wrong, or he or she did not understand the nature and qualify of his or her actions. Essentially, this means the intoxication defense works only where the level of intoxication of the defendant is so severe that it meets the criminal law definition of insanity.
Consent Defense: An element of PC 289(e) is that the victim is alleged to be too intoxicated to resist sexual penetration because he or she is not aware of the circumstances of the alleged act, not that sexual penetration is physically forced upon the victim. Thus, if the defendant can show that the alleged victim was not intoxicated to the level required under PC 289(e), and the victim otherwise demonstrated consent to vaginal sex or anal sex, then the defendant is entitled to an acquittal of the PC 289(e) charges.
Example: John and Jane are both intoxicated at a house party. While intoxicated, John and Jane have sexual intercourse in a bedroom. Later, Jane informs law enforcement that she was too intoxicated to resist John’s “date rape.” John is charged with PC 289(e). At trial, John brings three witnesses from the party that testify Jane did not appear as drunk as she alleges when she and John went to have sex in the bedroom. Result: John may be entitled to an acquittal because Jane appeared sober enough to resist sexual penetration and there is no indication that she otherwise resisted.
Note: Evidence that the victim requested the use of a condom, or that fact that the victim and the defendant were in a dating relationship at the time of the sexual penetration, is not, by itself, sufficient evidence to show the victim consented to sexual activity or sexual penetration with the defendant (Calcrim 1045).
Diversion Not Available: Diversion, or circumvention of criminal prosecution under certain circumstances, is not available in sexual penetration crimes, including violation of PC 289(e) [PC 1001.95 “Judicial Diversion,” PC 1001.36 “Mental Health” Diversion].
Post-Conviction Relief: After a conviction for sexual penetration upon an intoxicated victim, the defendant may have several post-conviction relief options, depending on the circumstances of the case, including a petition for certificate of rehabilitation (PC 4852), appeal the criminal conviction, withdraw a guilty plea (PC 1018), petition for early release on parole, expunge the PC 289(e) criminal conviction (PC 1203.4(b)), and more.
For more information on the law, penalties, and common defenses related to California penal code 289(e), sexual penetration by foreign object upon an intoxicated person, contact our sex crimes criminal defense attorneys today for free consultation.
Our award-winning, successful trial attorneys have handled hundreds of misdemeanor and felony sex crimes in both San Bernardino and Riverside County, including allegations of oral copulation, annoy or molest a minor, child molestation, lewd and lascivious act upon a child under fourteen (14) years of age, possession of child porn, sexual battery, indecent exposure, kidnap to commit a sex offense (PC 209(b)), soliciting prostitution, sexual assault, human trafficking, and more. Call today!
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