In California, the crime of sexual penetration upon a child under fourteen (14) years of age, is charged under California penal code section 289(j). This article covers the law, the punishments, and the common defenses found in PC 289(j) cases. For more information, contact our sex crimes criminal defense attorneys today for a free consultation.
PC 289(j) Law
Any person who participates in an act of sexual penetration upon a child, who is under fourteen (14) years of age, and who is more than 10 years younger than he or she, is guilty of sexual penetration by object upon a child under 14 (PC 289(j) Abbrev.).
Per PC 289(j), the defendant must be at least ten years older than the victim for the law to apply. This does not mean that the defendant who sexually penetrates a child, and who is within ten (10) years age difference from the victim, is not guilty of a crime. It just means that a law, other than PC 289(j), might apply, such as sexual penetration by object of minor under eighteen (PC 289(h)).
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 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 Defined: A “Foreign object,” is any substance, instrument, or device, including any part of the body, except a sexual organ (PC 289(k)(2)).
Unknown Object Defined: An “Unknown object” includes 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: Sexual penetration is usually charged when the victim is unsure what sexually penetrated him or her (i.e., finger, penis, object, etc.). When the victim is aware that the object that penetrated him or her, the defendant is charged with either rape (vaginal penetration by a man’s penis), or sodomy (anal penetration by a man’s penis).
Force Not Required: The crime of sexual penetration by foreign object upon a child under fourteen (14) does not require that force or fear is used against the child. The crime of PC 289(j) is complete even if the child appears to consent to the sexual penetration. This is because a child under fourteen (14) can not consent to sexual activity.
Note: When force or fear is used to accomplish sexual penetration of a child under fourteen (14), then the criminal charge will be filed under PC 289(a)(1)(B), a much more serious and violent offense with longer prisons sentence exposure.
PC 289(j) Punishment
Prison Sentence: PC 289(j) is classified as a serious and violent felony (PC 1192.7 & 667.5). If found guilty of sexual penetration by foreign object upon a child under fourteen (14) years of age, the defendant may face up to three (3), six (6), or eight (8) years in a California state prison.
Whether the court orders a three (3), six (6), or (8) year prison term after a conviction for penal code 289(j) depends on the facts and circumstances of the case. The factors the court determines in selecting the appropriate prison sentence include the defendant’s criminal history, the relationship between the child and the defendant, the level of sophistication used in the offense, the harm cause to the child, the desire for prosecution by the child or the child’s parents or guardians, and more.
Predetermined Sentence: A defendant and the district attorney may come to an agreement on the length of prison sentence during a negotiated plea bargain, but the judge does not have to accept the terms of the plea bargain. In any event, a negotiated plea bargain cannot work to vary the prison sentence below three (3) years, which is the indicated “low term” for PC 289(j) cases.
Prison Presumptive: If the defendant is sentenced to prison after a PC 289(j) conviction, as opposed to a probation sentence (See Probation Sentence), then the defendant must be incarcerated in a California state prison, as opposed to a local county jail. No part of the defendant’s prison sentence may be suspended or split (served partially out of prison on work release).
Probation Sentence: A probation sentence may be imposed in some PC 289(j) cases, as opposed to a prison sentence. A probation sentence is only granted to a defendant in PC 289(j) cases if the court finds that there are “special circumstances” that justify a probation sentence.
What constitutes “special circumstances” may vary, but generally, the “special circumstances” will include the defendant’s lack of criminal history, the lack of harm or desire for prosecution by the victim, the amenability of the defendant to serve probation, any offset good behavior demonstrated by the defendant, and more.
Probation Terms: If the defendant is granted a probation sentence after a conviction for sexual penetration by foreign object upon a child under fourteen (14), then the probations sentenced will include “terms of probation.” The terms of probation will generally include a criminal protective order against the defendant from contacting the child, a “commit no violation” terms, payment of court fines and fees, payment of restitution to the child, and even a short jail term in some cases.
Sex Offender Registration: A conviction for sexual penetration of a child under fourteen (14) years of age requires sex offender registration for the defendant. The length of sex offender registration is for life in PC 289(j) cases (Tier 3). For more information, see Sex Offender Registration Requirements & California SB 384 & PC 290(d) or Tier System for Sex Offender Registrants.
CIMT: Sexual penetration by foreign object upon a child under fourteen (14) is considered a “crime involving moral turpitude.” This means that PC 289(j) is considered an ‘morally wrong act.’ Crimes involving moral turpitude, including penal code 289(j) violations, carry direct and indirect consequences related to immigration status (deportation), professional licensing status (revocation of license), and military service status (dishonorable discharge).
Three Strikes Violation: As stated, PC 289(j) is a serious and violent offense, as those terms are defined in the penal code at 1192.7 and 667.5, respectively. This means that sexual penetration of a child under fourteen (14) is considered a “strike” offense under California’s Three Strikes Sentencing Law.
Prior Strike Convictions: If the defendant has suffered a prior “strike,” then his or her possible prison sentence exposure doubles for a subsequent conviction of PC 289(j). If the defendant has suffered two prior “strike” convictions, then his or her possible prison sentence exposure extends to life in prison.
Reduced “Good Conduct” Credits: Any prison sentence ordered after a conviction for sexual penetration of a child under fourteen (14) years of age is eligible for up to fifteen percent (15%) reduction for good behavior while in prison (PC 2933.1).
For example, if the defendant is ordered to serve three (3) years in prison after a conviction for PC 289(j), then he or she may be released after 31.4 months (i.e., roughly 15% of 36 months).
More Penalties: In addition to the punishments and consequences listed above, a defendant convicted of sexually penetrating a child under fourteen (14) years of age, the defendant will be penalized with court fines and fees, extra long parole terms (up to life parole), travel and living restriction related to PC 290 sex offender registration, loss of firearm rights, and more.
Important: Prosecution of PC 289(j) crimes does not impede simultaneous prosecution for lewd and lascivious act upon a child under fourteen (14) years of age (PC 288(a)).
Common PC 289(j) Defenses
No two criminal cases are the same; therefore, the defense to every criminal charge is different from case to case. With that said, the most common defense used in PC 289(j) cases include evidence of false accusation (or motive for false accusation), insufficient evidence to prove sexual penetration, impeachment of witness or scientific evidence, illegal search and seizure, coerced confession, non-Mirandized confession, insanity, alibi defense, and more.
Less common defenses in PC 289(j) cases include statute of limitations defense (See Statute of Limitations in CA Sex Cases) and mistake of fact defense (reasonable mistake as to the child age as being 18 or older). These defenses are technically available but rarely used because the statute of limitations is very long in most PC 289(j) cases and the mistake of fact as to the child’s age must be “reasonable,” which it is not in most cases.
For more information on the crime of sexual penetration of a child under fourteen (14) years of age, or California penal code section 289(j), contact our sex crimes criminal defense attorneys today for a free consultation.
Our team of dedicated and decorated sex crimes attorneys have successfully defended hundreds of felony and misdemeanor sex crimes in the Inland Empire, including cases of oral copulation, indecent exposure, lewd and lascivious act upon a child under 14, annoy or molest a minor, child molestation, pimping, prostitution, sexual battery, possession of child porn, incest, continuous sexual abuse of a child, failure to register as a sex offender, and more. Call today!