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Information on the crime of sodomy by force or fear is located at California penal code section 286(c)(2)(A). This summary covers the law, sentence, punishments, and common defenses related to penal code 286(c)(2)(A). For further information, contact our sex crimes criminal defense attorneys . PC 286(c)(2)(A) Law Per PC 286(c)(2)(A), Any person who commits an act of sodomy 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 sodomy by force or fear, a felony (PC 286(c)(2)(A) 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)). Note: Sodomy by force or fear is commonly referred to as “unlawful anal intercourse,” “anal sex by force,” or “anal rape.” PC 286(c)(2)(A) Punishment Prison Sentence: PC 286(c)(2)(A) is classified as a felony. If found guilty of sodomy by force or fear, the defendant may face up to three (3), six (6), or eight (8) years in a California state prison, depending on the circumstances and facts of the case. Triad Prison Sentencing: After conviction for sodomy by force or fear, the sentencing judge has only three options for the length of prison sentenced to be ordered: three (3), six (6), or eight (8) years. When deciding which prison sentence length best meets the interest of justice, the judge will consider any mitigating or aggravating factors presented by the district attorney and the defendant’s criminal defense attorney. If no factors are presented, the judge will sentence the defendant to the middle term prison sentence of six (6) years (i.e., “presumptive” prison sentence). PC 1170(h) Sentencing: Incarceration related to a PC 286(c)(2)(A) violation must be served in a California state prison, as opposed to a local county jail. Additionally, no part of a prison sentence related to the crime of sodomy by force or fear may be “split” or “suspended.” Reduced Good Conduct Credits: A prison sentence related to a PC 286(c)(2)(A) conviction may not be reduced by more than fifteen percent (15%) [PC 2933.1]. For example, if the defendant is sentence to six (6) years of prison after a PC 286(c)(2)(A) conviction, then the defendant must serve at least sixty-two months of prison even if he conducts himself with good behavior while in prison (i.e., +/- 85% of six (6) years). Consecutive Sentencing: Each conviction of PC 286(c)(2)(A) requires a full and complete prison sentence, which runs consecutive to any prison sentence for any other criminal charge (PC 667.61). Example: John is convicted of two (2) counts of PC 286(c)(2)(A). The judge sentences John to six (6) years of prison for each count. Result: John must serve twelve (12) years of prison because his prison sentence for count two (2) does not even start until he finishes his prison sentence for count one (1). Probation Sentence: A probation sentence after a conviction for sodomy by force or fear in not allowed. This means that if the defendant is convicted of PC 286(c)(2)(A), he must serve at least three (3) years of prison for each count (low-term prison sentence). Sex Offender Registration: Sex offender registration is mandatory after a conviction for PC 286(c)(2)(A) [PC 290]. The sex offender registration period is for life (Tier 3). For more information, see Sex Offender Registration Requirements & SB 384 – Tier System for CA Sex Offender Registrants . Moral Turpitude: Sodomy by force or fear is considered a crime involving moral turpitude, or CIMT. CIMT convictions result in deportation for non-US citizens, possible professional license revocation (i.e., doctor, lawyer, therapist, dentist, nurse, etc.), and discharge from military service. Three Strikes Sentencing: PC 286(c)(2)(A) convictions are classified as “strike” convictions per California’s Three Strikes Sentencing Law (PC 667.5 & 1192.7). Subsequent convictions of “strike” convictions can double a prison sentence or lead to life in prison, depending on the circumstances of the defendant’s prior “strike” conviction(s) status. Additional Penalties: Additional penalties after a conviction for sodomy by force or fear include restitution to victim, criminal protective orders against defendant, civil lawsuits, living and travel restrictions, loss of firearm are rights, loss of family law rights (child visitation, child custody, adoption, etc.), and more. PC 286(c)(2)(A) Common Defenses Common defenses to a criminal charge of sodomy by force or fear include consent to sodomy, insufficient evidence to prove anal intercourse occurred, impeachment of scientific evidence (DNA, seminal fluid, serology, fingerprints, etc.), defendant’s coerced confession, illegal search and seizure, un-Mirandized confession, impeachment of victim or witness statemen t (i.e., motive to fabricate, alibi defense, lack of consistent statements, etc.), and more. Note: Evidence that a person’s requested that the defendant use a condom during anal sex, or that the defendant and the victim were in a dating relationship at the time of anal sex, is not, by itself, sufficient to prove the victim validly consented to anal intercourse. Statute of Limitations: The statute of limitations is a time limit in which the district attorney must bring criminal charges against the defendant. If the statute of limitations has passed, the district attorney is barred from prosecuting the defendant. Note: The statute of limitations in PC 286(c)(2)(A) is not commonly used because the limitations period is very long in most sodomy by force or fear cases. Nevertheless, the defense can apply if certain conditions are met. For more information, see Statute of Limitations for Sodomy Offenses . Post-Conviction Options: Post conviction options are very limited in PC 286(c)(2)(A) cases. With that said, post-conviction options include appeal the criminal conviction, petition the court for a writ of habeas corpus, withdraw a guilty plea, or petition the Governor of California for a Governor’s pardon. Note: Certificate of rehabilitation and expungement options are not available after a conviction for sodomy by force or fear (PC 4852 & 1203.4, respectively). For more information on the crime of sodomy by force or fear, or California penal code section 286(c)(2)(A), contact our sex crimes criminal defense attorneys today for a free consultation. Our aggressive and passionate criminal defense attorneys have successfully handled hundreds of felony and misdemeanor sex crimes in the I.E. Our team of award-winning criminal defense trial attorneys represent clients in any of the following sex crimes: Lewd and Lascivious Act Upon a Child Under Fourteen ( PC 288(a) ), Sexual Battery ( PC 243.4 ), Possession of Child Pornography ( PC 311 ), Soliciting Prostitution ( PC 647(b)(2) ), Indecent Exposure ( PC 314.1 ), Annoy or Molest a Minor ( PC 647.6 ), Child Molestation ( PC 288 ), Statutory Rape ( PC 261.5 ), Sexual Penetration ( PC 289 ), Oral Copulation ( PC 287 ), Revenge Porn ( PC 647(j)(4) ), and more. Call today! 909-913-3138 Related Offenses (2025) Rape by Force or Fear PC 261(a) Sexual Assault ( PC 220(a) ) Sexual Penetration by Force Human Trafficking ( PC 236.1 ) Incest Crimes ( PC 285 ) PC 286(c)(2)(A) Sodomy by Force or Fear: Law, Sentence, Punishments, & Defense

Information on the crime of sodomy upon a child less than fourteen (14) years of age is found at California penal code section § 286(c)(1). This article discusses the law, penalties, and common defense related to PC 286(c)(1). For further information, contact our sex crimes criminal defense attorneys for a free consultation. 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)). The medical term for sodomy is “anal intercourse,” and the slang or colloquial term for sodomy is “anal sex.” The term “sodomy” is Biblical in origin and originally referred to the ancient Biblical city of Sodom, where sin and sexual acts between members of the same sex occurred by and between the city’s inhabitant, the Sodomites. Today, the legal term of sodomy still holds negative connotation for many people. For this reason, the term sodomy is referred to as “anal intercourse” where examples are used. PC 286(c)(1) Law Per PC 286(c)(1), any person who participates in an act of sodomy with another person who is under 14 years of age, and more than 10 years younger than the defendant, is guilty of sodomy of a child under fourteen (14), a felony (PC 286(c)(1) Abbrev.). Note: PC 286(c)(1) is not charged where either the child is at least fourteen (14) at the time of the alleged offense, or the defendant is not more than ten (10) years older than the child at the time of the offense. Of course, other sodomy charges may still apply depending on the age of the child and the age of the defendant (i.e. sodomy of a child under ten (10) [ PC 288.7(b) ]; sodomy of a minor under sixteen [ PC 286(b)(2) ], etc.). PC 286(c)(1) Punishment Three Strikes Offense: Sodomy of a child under fourteen (14) is a serious and violent offense as defined at California penal code sections 1192.7 and 667.5, respectively. This means that PC 286(c)(1) is considered a “strike” offense under California Three Strikes Sentencing Law. Any “strike” offense, including PC 286(c)(1) crimes, may add significant prison time to the defendant’s prison sentence. Prison Sentence: Any conviction of sodomy of a minor under fourteen (14) can result in a prison sentence of up to three (3), six (6), or eight (8) years, depending on the presence or absence of any aggravating or mitigating circumstances related to the case. Example: Devin is convicted of PC 286(c)(1), his criminal defense argues that Devin should receive the low term (“mitigated”) prison sentence of three (3) years because Devin has not prior criminal history and he readily confessed upon initial police questioning. The district attorney argues that Devin should receive the high term (“aggravated”) prison sentence of eight (8) years because Devin showed no remorse when he confessed, and he took advantage of a position of trust when he committed his crime. Result: The court will consider the arguments of Devin’s defense attorney and the district attorney and make a choice as to what prison sentence best serves the interest of justice. Plea Bargaining: Plea bargaining is somewhat limited in PC 286(c)(1) cases, especially after the preliminary hearing stage in the case. In any event, the court will consider the terms of a plea bargain arrangement in deciding what length of prison time is appropriate. Example: Stanly is convicted of sodomy of a child under fourteen (14) years of age. Stanly’s convicted is part of a plea bargain wherein Stanly agrees to plead “guilty” to the PC 286(c)(1) allegation in return for the district attorney’s promise to seek the low term (“mitigated”) prison sentence of three (3) years. Result: The court will likely not disturb the terms of the plea bargain, and the court will not seek further arguments from the defense attorney or district attorney as to why the parties reached an agreement for a low term (“mitigated”) prison sentence of three (3) years, as opposed to the middle term (“presumptive”) prison sentence of six (6) years. Prison Presumptive: A conviction for penal code 286(c)(1) requires either a prison sentence or a probation sentence (See PC 286(c)(1) Probation Sentence). If the defendant is not granted a probation sentence, then his incarceration must be served in a California state prison, as opposed to a local county jail. Also, no part of the defendant’s prison sentence may be served out of prison, such as on work release. Finally, no part of a PC 286(c)(1) prison sentence may be “suspended” (Aka “joint suspension”) [PC 1170(h)]. Example: Gary is convicted of sodomy with a child under fourteen (14) years of age. The judge will not grant Gary a probation sentence for various reasons. The judge would like to sentence Gary to county jail, but the law does not allow the judge to send Gary to a local county jail to serve his sentence. Also, the judge is amenable to the idea of allowing Gary to serve half of his prison sentence out of prison on work release; but again, the law does not allow the judge to grant Gary’s request. Consecutive Prison Sentence: Each violation of PC 286(c)(1) is served “consecutive” to any other felony charge listed in the criminal complaint. This means that the prison sentence related to all of the defendant’s criminal charges may not be served “concurrently,” or “at the same time.” (PC 661.61). Example: Robert is convicted of two counts of sodomy of a minor under fourteen (14). Robert’s maximum prison exposure in this situation is sixteen (16) years (2 times 8 years for each PC 286(c)(1) count). With consecutive sentencing the judge could have ordered Robert to serve both PC 286(c)(1) sentencing together for a maximum exposure of eight (8) years of prison (or other possible sentencing calculations). PC 286(c)(1) Probation Sentence: A probation sentence is allowed in some PC 286(c)(1) cases (See PC 286(c)(1) Probation Eligibility). A probation sentence is a period of supervision, as opposed to a prison sentence. A probation sentence carries “terms of probation” that must be obeyed to stay out of prison and remain on probation. The terms of probation in PC 286(c)(1) case are monitored by a felony probation officer and usually include mandatory polygraph exams, “violate no law” orders, “do not leave the state of California” orders, and more. PC 286(c)(1) Probation Eligibility: A probation sentence is allowed after a conviction for sodomy upon a child under fourteen (14) where 1) the court finds “special” circumstance exist that justify a probation sentence, as opposed to a prison sentence, and 2) no force was used to commit the sodomy crime. “Special” Circumstance: The special circumstances that might justify a probation sentence after a PC 286(c)(1) conviction include, but are not limited to, the absence of criminal history for the defendant, the lack of desire to prosecute from the victim and the victim’s parents, the lack of sophistication used in the offense, the otherwise positive relationship between the victim and the defendant (without the defendant taking advantage of a position of trust), the amenability of the defendant to serve a probation sentence, and more. “Lack of Force”: As stated, the court may only allow a probation sentence, as opposed to a prison sentence, if the defendant used no force to accomplish sodomy of the child. This means no force above and beyond the force required to commit the crime. Jail Term for Probation: As stated, the judge must sentence the defendant to prison if the judge does not grant a probation sentence to the defendant in a PC 286(c)(1) case; however, if the judge does grant a probation sentence to the defendant, then the judge may order the defendant to serve a jail sentence as a “term of probation.” In this situation, the defendant may serve his incarceration in a local county jail, or in some cases, serve that jail sentence alternatively on work release. Sex Offender Registration: Sodomy upon a child under fourteen (14) years of age convictions result in mandatory registration as a sex offender. The “Tier Level” is classified as “Tier Three” sex offender registration in California. This means sex offender registration after a PC 286(c)(1) conviction is for life. For more information, see Tier 3 Sex Offender Registration & Sex Offender Registration Requirements . Note: Neither a certificate of rehabilitation (PC 4852), nor an expungement of criminal record (PC 1203.4) is available to the defendant after a conviction for sodomy with a child under fourteen (14). Moral Turpitude: The crime of sodomy with a child under 14 is considered a “crime involving moral turpitude.” A crime involving moral turpitude is any offense that involves morally wrongful conduct. These crimes carry further direct and indirect penalties for military service members (discharge or denial of entry into the military), licensed professionals (denial or revocation of professional license), and non-United States citizens (deportation from, or denial of entry into, the United States). Life Parole: “Parole,” or the early release from prison upon conditions, may be extended from twenty (20) years to life after release from prison in PC 289(c)(1) cases. Reduced Prison Credits: Prisoners convicted of sodomy of a child under 14 receive less “good behavior” credits while in prison (PC 2933.1). The maximum credits that may earned is no more than fifteen percent (15%) off the prisoner’s sentence. Example: Joe is sentenced to six (6) years of prison after a conviction for penal code 286(c)(1). Joe serves his prison time with “good behavior.” Nevertheless, Joe’s prison sentence of six (6) years may only be reduced by eleven (11) months (11 months equals roughly 15% of 72 months). Additional Punishment: In addition to the punishments listed above, if the defendant is found guilty (or plead “guilty) to PC 289(c)(1), he could face any of the following additional punishments and penalties: loss of firearm rights, restitution to victim / child for any financial loss, criminal protective orders (CPO) to keep the defendant away from the victim, civil lawsuits, living and travel restrictions, and more. PC 286(c)(1) Defenses Common defenses in sodomy of a child under 14 cases include illumination of the unreliability of victim’s statements or scientific evidence, coerced confession, motive to fabricate, illegal search and seizure, failure to Mirandize suspect before questioning, insanity defense, overall insufficiency of the evidence, and alibi defense. Defense of Consent: The victim / child’s agreement or “consent” to engage in sodomy is not valid in California. Therefore, it is not a defense to argue that the child under fourteen (14) consented to sodomy, even if the child agreed to engage in sodomy. The age of valid consent to engage in sexual conduct in California is eighteen (18). For more information on the crime of sodomy against a victim under fourteen (14) years of age, or California penal code section 286(c)(1), contact our sex crimes criminal defense attorneys today for a free consultation. Our award-winning team of criminal defense attorneys have successfully handled hundreds of sex crimes in the Inland Empire. Our dedicated and passionate attorneys handle all misdemeanor and felony violation of PC 647.6 [ Annoy or Molest a Minor ]; PC 647(b) [ Prostitution ]; PC 288(c) [ Lewd Act Upon a Child 14 or 15 ]; PC 243.4 [ Sexual Battery ]; PC 311.11 [ Possession of Child Pornography ]; PC 288.5 [ Continuous Sexual Abuse of a Child ]; PC 287 [ Oral Copulation ] PC 289 [ Sexual Penetration by Foreign Object ]; PC 314 [ Indecent Exposure ], and more. Call today! 909-913-3138 Recent Articles (2025) PC 286(b)(2) Law & Defense PC 626.81 Law & Defense PC 647(j)(2) Law & Defense Probation & Parole for Sex Crimes PC 288(a) Law & Defense PC 286(c)(1) Sodomy Upon a Child Under Fourteen (14) Years of Age: Law, Penalties, & Defense

Sodomy with a person under sixteen (16) years of age is charged as a felony in California (PC 286(b)(2). This review illuminates the law, penalties, & common defense strategies related to PC 286(b)(2). For further information, contact our sex crimes criminal defense attorneys for s free consultation. To begin, “sodomy” is sexual conduct consisting of contact between the penis of one person and the anus of another person (PC 286(a)). The medical term for sodomy is “anal intercourse.” The most common colloquial term for sodomy is “anal sex.” PC 286(b)(2) Law ... any person over 21 years of age who participates in an act of sodomy with another person who is under 16 years of age shall be guilty of sodomy of a minor under sixteen (16) [PC 286(b)(2) Abbrev.]. Per PC 286(b)(2), the crime is not charged if either the defendant is twenty-one (21) years of age or younger, or the minor is sixteen (16) years of age or older. Of course, criminal sodomy charges other than PC 286(b)(2) may apply when the defendant is twenty-two (22) years of age or older, or the minor is sixteen (16) years of age or older. Note: Any sexual penetration, however slight, is sufficient to complete the crime of sodomy. Attempted Sodomy: To attempt sodomy of a person under sixteen (16) years of age is also a felony. The criminal charge for attempted sodomy of a person under sixteen (16) is PC 664/286(b)(2)). PC 286(b)(2) Punishment PC 286(b)(2) Incarceration: A conviction for sodomy of a minor under sixteen (16) years of age can result in a prison sentence of up to sixteen (16) months, two (2) years, or three (3) years, depending on the facts and circumstances of the case. A probation sentence, as opposed to a prison sentence, may be available in some PC 286(b)(2) cases (See PC 286(b)(2) Probation Options). Note: Whether the judge sentences the defendant to a probation sentence, a sixteen (16) month prison sentence, a two (2) year prison sentence, or a three (3) year prison sentence, depends on the presence or absence of any mitigating or aggravating factors related to the facts of the case. Mitigating & Aggravating Factors: The mitigating and aggravating factors the court will consider in choosing the appropriate sentence after a PC 286(b)(2) conviction include the defendant’s criminal history, the relationship between the minor and the defendant, the harm caused to the victim, the desire for prosecution by the minor, the level of sophistication used in committing the offense, the amenability of the defendant to serve a probation sentence, and more. Prison Presumptive: If the defendant is denied probation after a penal code 286(b)(2) conviction, then his incarceration must be served in a California state prison, as opposed to a local county jail. Also, the defendant’s prison sentence may not be split (prison sentence served partially out of prison on work release) or suspended (not served unless the defendant violates any term of his out-of-prison release). Reduced Prison Sentence: A prison sentence after a conviction for sodomy of a minor under sixteen (16) years of age may be reduced by up to fifty percent (50%) for good behavior while in prison (PC 4019). Example: John is convicted of PC 289(b)(2). John is denied probation and he is sentenced to a low-term prison sentence of sixteen (16) months. If John serves his prison sentence with good behavior, then his prison sentence will be reduced to eight (8) months (50% of 16 months). However, no part of John’s eight (8) month prison sentence may be served out of prison on work release or house arrest (PC 1170(h)). PC 286(b)(2) Probation Options: Probation, as opposed to a prison sentence, is allowed after a conviction for sodomy of a person under sixteen (16) years of age, but only if the judge determines that “special” circumstances exist that justify a probation sentence. Special Circumstances: The “special” circumstances that justify a probation sentence after a conviction for PC 286(b)(2) include the lack of criminal history for the defendant, the showing of remorse by the defendant, the otherwise positive relationship between the defendant and minor, the lack of desire for prosecution by the victim and the victim’s parents, the lack of sophistication used in the offense, and more. Sex Offender Registration: A conviction for sodomy with a minor under sixteen (16) years of age requires sex offender registration (PC 290). The length of sex offender registration depends on several factors in PC 286(b)(2) cases. For more information, see Tier Levels for Sex Offender Registration , Sex Offender Registration Requirements , and Petition to Terminate Sex Offender Registration . Crime Involving Moral Turpitude: Sodomy of a minor less than sixteen (16) years of age is classified as a “crime involving moral turpitude.” A crime involving moral turpitude is any crime that is considered morally wrong. Crimes involving moral turpitude, including PC 286(b)(2) crimes, carry severe negative consequences for non-United States citizens (deportation), licensed professionals (revocation of license), and military personnel (discharge from military). Three Strikes Application: The crime of sodomy with a child under the age of sixteen (16) is not a “strike” offense per California’s Three Strikes Sentencing Law. As such, PC 286(b)(2) is not classified as a “serious” offense (PC 1192.7) or a “violent” offense (PC 667.5). However, if the defendant has suffered two (2) prior strikes before his conviction for PC 286(b)(2), then his PC 286(b)(2) conviction can “trigger” a third “strike,” resulting in a life in prison sentence. Additional Punishment: In addition to the punishment(s) and penalties listed above, if found guilty of PC 286(b)(2), the defendant could suffer court fines and fees, criminal protective orders in favor of the minor, restitution ordered for the minor’s financial loss, loss of firearm rights, loss of the right to adopt a child as a stepparent, civil lawsuits, and more. PC 286(b)(2) Defenses Common defense used in PC 286(b)(2) cases include statute of limitations , reasonable mistake as to the age of the minor as being of the age of consent (18), coerced confession, illegal search and search, improper or lack of Miranda Warnings before statements elicited by the defendant, insanity, impeachment of witness or victim’s testimony, impeachment of scientific evidence (DNA, fingerprint, serology, seminal fluid, etc.), and alibi defense. Reasonable Mistake of Age: In PC 286(b)(2) cases, the defendant is entitled to an acquittal if he can demonstrate that he harbored an honest and reasonable belief that the minor was at least eighteen (18) years of age when he engaged in sodomy with the minor. Note: For mistake of fact to be considered in sodomy of a minor under sixteen (16) cases, the defendant will need to show his belief was honest (subjective perspective), and reasonable (objective perspective). Defense of Consent: The defense of consent is not available in PC 286(b)(2) cases. This is because a minor under the age of eighteen (18) is not legally capable of consenting to sodomy in California. The age of consent to sexual conduct in California is eighteen (18). Example: Jack and Jill engage in anal sex after dating for a few months. Jack used no force against Jill when they engage in anal sex; and Jill agreed to have anal intercourse with Jack however, Jack is twenty-two (22) years old, and Jill is only fifteen (15) years old. Result: Jack could be charged with a violation of penal code 286(b)(2) even though Jill “agreed” to have anal sex with him. Post-Conviction Issues: After a conviction for sodomy with a minor under sixteen (16) years of age, the defendant may have several post-conviction relief options, depending on the circumstances of his conviction, including a petition the court for a certificate of rehabilitation (PC 4852), expunge the criminal conviction (PC 1203.4), appeal the criminal conviction, withdraw the guilty or “no contest” plea (PC 1018) , and more. For more information about California penal code section 286(b)(2), or sodomy with a person under sixteen (16) years of age, contact our sex crimes criminal defense attorneys today for a free consultation. Our experienced and passionate criminal defense attorneys have successfully handled hundreds of misdemeanor and felony sex crimes in the San Bernardino and Riverside County area. Our team of award-winning sex crimes criminal defense attorneys handle all misdemeanor and felony sex crimes, including lewd and lascivious act upon a child under fourteen (14) , annoy or molest a minor , child molestation , sexual battery , prostitution , possession of child pornography , rape by force or fear , continuous sexual abuse of a child , aggravated sexual abuse of a child , lewd act in public ( PC 647(a) ), kidnap to commit a sex offense ( PC 209(b)(2) ), and more. Call today! 909-913-3138 Further Reading (2025) PC 286(b)(1) Law Explained PC 288.4 Law & Defense Engage in Live Obscene Conduct Operating a Brothel Defense Lewd Act by Force Upon Child PC 286(b)(2) Sodomy with a Minor Under Sixteen (16) Years of Age: Law, Sentence, & Defense

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! 909-913-3138 Additional Reading (2025) Sodomy Crimes ( PC 286 ) Fail to Register as Sex Offender PC 289(h) Law & Defense PC 269 Law & Defense Attempted Rape & PC 664/261 PC 289(j) Sex Penetration by Object Upon Child Under Fourteen (14): Law, Sentence, & Defense

The law on the crime of sexual penetration upon a minor , also called “sexual penetration by foreign object upon a person under eighteen (18) years of age,” is found at California penal code section 289(h). This overview covers the law, punishments, and common defenses related to PC 289(h). For more information, contact our sex crimes criminal defense attorneys . PC 289(h) Law Any person who participates in an act of sexual penetration with another person, who is under 18 years of age, is guilty of sexual penetration of a minor (aka ‘statutory sexual penetration’) [PC 289(h) Abbrev.). “Sexual penetration” is defined as “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, sexual gratification, or sexual abuse, by any foreign object, substance, instrument, or device, or by any unknown object (PC 289(k)(1) Abbrev.). “Foreign object,” is defined as “any substance, instrument, or device, including any part of the body, except a sexual organ” (PC 289(k)(2) Abbrev.). “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) Abbrev.). Note: Sexual penetration is charged where the victim is not certain as to the object that penetrated her or him. When the penetrating object is a man’s penis, and the victim is certain that he or she was penetration with a man’s penis, then other statutory crimes are charged, such as statutory rape , unlawful sexual intercourse , or statutory sodomy . Also, sexual penetration of a minor charged under PC 289(h) is available when the victim attempts to consent to the sexual penetration, but his or her consent is voided because of his or her status as a minor (California’s “age of consent” is eighteen (18)). Example: John and Jane are boyfriend and girlfriend. John is twenty-one (21) years old, and Jane is seventeen (17) year old (i.e., a “minor”). John and Jane engage in sexual conduct whereby John penetrates Jane’s vagina with his fingers. John does not force his girlfriend to engage in sexual conduct with him, but because of Jane’s age, she cannot validly consent to the sexual penetration. Result: John may be charged with ‘statutory sexual penetration’ per penal code 289(h). Important: When force or fear is used to accomplish sexual penetration of a minor, as opposed to voided consent due to the minor’s age, then more serious sexual penetration charges may be levied against the defendant. PC 289(h) Punishment Penal code 289(h) may be charged either as a felony, or alternatively as a misdemeanor in California. This means that sexual penetration of a victim under the age of 18 is classified as a “wobbler” offense (the classification of crime “wobbles” between felony and misdemeanor). Note: Whether the defendant is charged with a felony or misdemeanor violation of PC 289(h) depends on many factors, such the age difference between the defendant and the victim, the relationship between the defendant and the victim, the harm cause to the victim, the remorse shown by the defendant, the defendant’s criminal history, and more. Felony PC 289(h) Incarceration: When sexual penetration by object upon a minor is charged as a felony, the defendant could face up to sixteen (16) months, two (2) years, or three (3) years in prison. A probation sentence without incarceration may be available in some felony PC 289(h) cases (See Probation Sentence). Whether the defendant receives the high term prison sentence of three (3) years, the middle term prison sentence of two (2) years, or the low term prison sentence of sixteen (16) months after a felony PC 289(h) conviction depends on many factors, including the presence or absence of any mitigating or aggravating factors present in the facts of the case. Mitigating & Aggravating Factors: Mitigating and aggravating factors that help a judge determine what prison sentence is most appropriate after a felony conviction of PC 289(h) includes the defendant’s criminal history, the remorse shown by the defendant, the harm cause to the victim, the relationship between the victim and the defendant, the desire for prosecution from the victim (or victim’s family), and more. Misdemeanor Jail Sentence: When sexual penetration by foreign object upon a victim under eighteen (18) years of age is charged as a misdemeanor, the defendant could face up to one (1) year in the county jail. A probation sentence, without incarceration, may also be available in misdemeanor PC 289(h) cases (See Probation Sentence). Probation Sentence: A probation sentence is a period of supervision, as opposed to a jail or prison sentence. A probation sentence is allowed in both felony and misdemeanor PC 289(h) cases. However, in felony PC 289(h) cases, before the defendant may be granted a probation sentence, he or she will be required to demonstrate to the court that a probation sentence, as opposed to a prison sentence, is in the best interest of justice, and “special” circumstances exists that justify a probation sentence. “Special” Circumstances Probation: The “special” circumstances that might justify a probation sentence in a felony PC 289(h) case includes, but is not limited to, the following: the lack of criminal history of the defendant, the relationship status between the defendant and the sexual penetration victim, the desire for prosecution by the victim, the amenability of the defendant serving a probation sentence, the remorse shown by the defendant, the level of sophistication of the alleged offense, and more. PC 1170(h) Sentencing: If the defendant is convicted of sexual penetration of a minor, and he or she is not granted probation, then the defendant must be sentenced to a California state prison, as opposed to a local county jail. Additionally, not part of the defendant PC 289(h) prison sentence may be “suspended” (aka “joint-suspended prison sentence”) or split (served partially out of prison on work release). Fifty Percent Incarceration: Incarceration periods related to the crime of sexual penetration by foreign object upon a person under eighteen (18) years of age are eligible for fifty percent (50%) “good behavior credits.” [PC 4019]. This means that the defendant’s prison or jail sentence is cut in half, so long as he or she conducts himself or herself with ‘good behavior’ while incarcerated. Note: The fifty percent (50%) good conduct credit applies to both felony and misdemeanor violations of PC 289(h). Sex Offender Registration: Sex offender registration is required after a conviction for sexual penetration of a minor (under 18). The length of sex offender registration is presumptively ten (10) years for misdemeanor PC 289(h) violations and twenty (20) years for felony PC 289(h) violations. For more information, see PC 290 Registration Requirements , Termination of Sex Offender Registration (SB 384) & PC 290 Tier Levels in California . Non-Serious, Non-Violent: Sexual penetration by foreign object against a victim under eighteen (18) is not considered a “serious” offense or a “violent” offense, at least not as those terms are defined in the California penal code at sections 1192.7 and 667.5, respectively. This means that PC 289(h) is not considered a “strike” offense under California’s Three Strikes Sentencing Law Note: Even though PC 289(h) is not classified as a serious or violent offense, a conviction of PC 289(h) may “trigger” a third “strike” if the defendant has already suffered two prior “strikes” before his PC 289(h) conviction. A third “strike” can lead to a life sentence in California. Crime Involving Moral Turpitude: PC 289(h) crimes are classified as “crimes involving moral turpitude.” A crime involving moral turpitude is any crime that involves deceit or is otherwise considered inherently and morally wrong. Crimes involving moral turpitude, including PC 289(h) convictions, lead to adverse consequences for non-US citizens (i.e., deportation, denial of entry into US, etc.), licensed professionals (revocation of license), and military personnel (discharge from military). Criminal Protective Orders: Sexual penetration of a minor under eighteen (18) will almost always require a criminal protective order in favor of the victim (i.e., no contact between victim and defendant). This is true even where the defendant and the victim are either related (incest crimes), or in a dating relationship. This criminal protective order may be modified if the court finds the victim is sufficiently protected without the order (PC 1203.3). Additional Penalties: In addition to the punishments listed above, if found guilty of sexual penetration of a person under 18 years of age, the defendant will loss his or her firearm rights (felony cases only), possibly be sued by the victim for battery, suffer penalty fees and court fines, be ordered to pay restitution for any financial loss to the victim, long parole with extensive conditions, and more. PC 289(h) Defenses Common defenses in PC 289(h) cases include statute of limitations , defendant’s reasonable mistake as to the age of the victim, coerced confession, valid marriage between the victim and the defendant, illegal search and seizure, insufficient evidence to prove the defendant sexually penetrated the victim, unreliable scientific or witness evidence, jury nullification , and more. Defense of Consent: The defense of consent is not available in a sexual penetration by foreign object upon a minor case. This is because the minor is too young to validly consent to sexual activity. Reasonable Mistake of Age: It is a defense to a sexual penetration crime charged under penal code 289(h) to show the defendant reasonably believed the minor was of the age of consent (18). The reasonableness of the defendant’s honest mistake is considered in light of all the evidence and circumstances of the case. Penal Code 17(b): When the defendant is charged with a felony violation of PC 289(h), he or she may move to have the court reclassify the felony charge to a misdemeanor charge. Whether the judge will reclassify the criminal charge depends on many factors, including the age of the defendant and the age of the victim, the relationship between the victim and the defendant, the terms of any negotiated plea bargain between the defendant and the district attorney, the criminal history of the defendant and more. Note: The defendant may petition the court to reclassify a PC 289(h) felony to a misdemeanor even over the district attorney’s objection. Diversion Not Available: “Diversion” in any form is not available in sexual penetration of a minor cases. This includes Veteran’s Court Diversion, Judicial Diversion (PC 1001.95), and Mental Health Diversion (PC 1001.36). Post-Conviction Relief: After a conviction for sexual penetration by foreign object upon a victim under 18 years of age, the defendant may have several post-conviction relief options, including appeal the criminal conviction, withdraw a guilty or “no contest” plea, expunge the PC 289(h) conviction , petition the court for a certificate of rehabilitation , modify probation term for misdemeanor probation , and more. For more information on the crime of sexual penetration of a minor under 18 years of age (aka ‘statutory sexual penetration’), or California penal code § 289(h), contact our sex crimes criminal defense attorneys today for a free consultation. Our award-winning sex crimes defense attorney have successfully handled hundreds of misdemeanor and felony sex crimes in the Inland Empire, including charges or rape , indecent exposure , termination of sex offender registration , illegal sodomy , oral copulation by force or fear , sexual battery , possession of child pornography , lewd and lascivious act upon a child , statutory rape , engaging in prostitution , engaging in public lewd conduct ( PC 647(a) ), reveal nude images to humiliate , and more. Call today! 909-913-3138 Related Articles (2025) PC 289(e) Law & Defense Seal & Destroy PC 653.22 Crime Probation Ineligible Sex Crimes Sex Offender Website Exclusion PC 289(h) Sexual Penetration by Foreign Object Upon Minor Under 18

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! 909-913-3138 Recent Summaries (2025) Sex with Inmates PC 289(a)(1)(C) Explained PC 288.3 Law & Defense Obscene Live Conduct (PC 311.6) PC 289(e) Sex Penetration by Object on Intoxicated Victim: Law, Penalty & Defense

Information on the crime of sexual penetration by object on person 14-17 years of age by force is found at California penal code § 289(c)(1)(C) PC. This overview covers the law, punishments, and common defense related to PC 289(c)(1)(C). For more information, visit sex crimes defense attorneys today for a free consultation. PC 289(a)(1)(C) Law Any person who commits an act of sexual penetration upon a minor who is 14 years of age or older, 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 minor 14-17 years of age by force (PC 289(a)(1)(C) 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 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: “Foreign object, substance, instrument, or device” shall include any part of the body, except a sexual organ PC 289(k)(2)). 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)). Duress Defined: Duress, as used in PC 289(a)(1)(C), means “a direct or implied threat of force, violence, danger, hardship, or retribution that is enough to cause a reasonable person of ordinary sensitivity to do something that he or she would not otherwise do. All the circumstances of the case must be considered, including the victim’s age, when considering whether the victim acted under duress in a sexual penetration of a minor under eighteen (18) charge (14-17). [Calcrim 1045]. 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)). Example: Jamie, a sixteen (16) year old female, is raped by serial rapist. When Jamie is raped, she shuts her eyes and cannot be certain the serial rapist penetration her with his penis. The crime of rape requires vaginal penetration by a man’s penis. Therefore, to avoid dismissal of rape charges due to the victim’s uncertainty as to whether the serial rapist sexually penetrated her with his penis, the district attorney charges the serial rapist with the crime of sexual penetration of a minor under eighteen (18), or PC 289(a)(1)(C). PC 289(a)(1)(C) Punishment Prison Sentence: Sexual penetration upon a child 14-17 years of age is charged as a felony in California. If found guilty of PC 289(a)(1)(C), the defendant could face up to six (6), eight (8), or ten (10) years in a California state prison, depending on the facts and circumstances of the case. Note: Whether the defendant is sentenced to 6, 8, or 10 years of prison after a sexual penetration against a child 14-17, depends on many factors, including the harm caused by the defendant to the victim, the relationship between the defendant and the victim, the defendant’s criminal history, the terms of any negotiated plea bargain agreement, and more. Split Prison Sentence Forbidden: After a PC 289(a)(1)(C) conviction, the defendant must serve his or her prison sentence is a California state prison, as opposed to a local county jail. Additionally, no part of a prison sentence related to sexual penetration of a child 14-17 years of age may be neither be split (served partially out of prison on house arrest or work release), nor suspended (not served subject to certain conditions) [Penal Code 1170H]. Probation Not Allowed: A probation sentence is not allowed after a conviction for sexual penetration of a child under eighteen (18) years of age. This is true even if the district attorney and the defendant are otherwise amenable to a probation sentence. Reduced Prison Credits: A prison sentence after a conviction for sexual penetration upon a child 14-17 years of age may only be reduced by up to fifteen percent (15%) even if the inmate serves his or her prison sentence with good behavior. This is known as the "reduced prison credits" law and it applies in most felony sex crimes, including PC 289(a)(1)(C) cases (PC 2933). Three Strikes Law: PC 289(a)(1)(C) is classified as a "strike" offense per California's Three Strikes Sentencing Law. As such, the crime of sexual penetration upon a child 14-17 years of age is considered both a serious offense, and a violent offense, as those terms are defined in the California penal code under PC 1192.7 and 667.5, respectively. Conviction of "strike" offense, including PC 289(a)(1)(C) crimes, leads to harsher punishment and longer prison sentences for repeat felony offenders, including up to a life sentence for a conviction of a third "strike" offense. Sex Offender Registration: Sex offender registration is mandatory after a conviction for PC 289(a)(1)(C). For more information, see Length of Sex Offender Registration for California Sex Crimes & Sex Offender Registration Requirements . Parole after Prison: Inmates who are released on parole after a conviction for sexual penetration of a child under eighteen (18) may be sentenced to parole for twenty (20) years to life. Parole is not like probation. The goals of parole are to reintegrate a person into society after prison. Nevertheless, conditions of parole after a PC 289(a)(1)(C) conviction will include, but are not limited to, mandatory sex offender registration for life (Tier Three). Immigration Consequences: Non-United States citizens who are convicted of PC 289(a)(1)(C) will be deported from the United States because sexual penetration of a child between 14 and 17 is considered a “deportation offense.” Also, for defendants who have been deported after a conviction of PC 289(a)(1)(C), reentry into the United States is denied. This means that after a conviction for PC 289(a)(1)(C), a non-US citizen will be deported from the United States after he or she serves his or her prison sentence. Other Penalties: Addition direct and indirect penalties for PC 289(a)(1)(C) convictions included loss or denial of a professional license (doctor, attorney, therapist, teacher, nurse, etc.), discharge or denial of entry into the armed forces, court fines and fees, loss of firearm rights, civil lawsuits, restitution orders, criminal protective orders, long parole (up to life) and more. PC 289(a)(1)(C) Defenses Common defense against allegations of sexual penetration of a child under eighteen (18) years of age (14-17) include coerced confession, illegal search and seizure, reasonable mistake of fact as to age of the victim, insufficient evidence that sexual penetration occurred, false allegations, impeachment of witness or scientific evidence, Failure to “Mirandize” defendant, when necessary, statute of limitations (very limited), alibi defense, insanity, and more. Consent Not a Defense: A minor cannot legally consent to sexual penetration; therefore, it is not a defense to prove that the minor wanted to engage in sexual penetration. However, it is defense to PC 289(a)(1)(C) is the defendant reasonably believed that the minor was of the age of consent (18 in California). What is “reasonable” belief that the child is of the age of consent is determined after examining the facts and circumstances of the case. Example: Jamie meets John at a party. John is twenty (20) years old and Jamie is seventeen (17) years old, but she tells John she is eighteen (18) years old, and John honestly believes her based on her appearance and demeanor. Later, Jamie and John have sexual intercourse at the party. When law enforcement discovers that Jamie and John had sex John is charged with statutory rape (PC 261.5(c), and sexual penetration of a minor under eighteen (PC 289(a)(1)(C)). Result: Because John truly and reasonably believed that Jamie was of the age of consent (18 in California), both PC 261.5(c) and PC 289(a)(1)(C) charges should be dismissed. Alibi Defense: Sexual penetration of a minor aged 14/17 is sometimes alleged where the victim claims he or she “closed” his or her eyes during a rape or sodomy by force or fear . In cases where the defendant and the victim are unknown to each other, and the alleged victim claims that he or she closed his or her eyes during the sexual act, an alibi defense is not uncommon, unless the PC 289(a)(1)(C) charges are supported by scientific evidence, such as DNA, seminal fluid, etc. For further information, see Common Defense Strategies in California Sex Crimes Cases . Post-Conviction Options: After a conviction for penal code 289(a)(1)(C), the defendant may have several post convictions options, depending on the circumstances of the case, including withdrawing his or her “no contest” or guilty plea, appealing the criminal conviction, petitioning the California Governor for a pardon, petition the court for a Writ of Habeas Corpus, and more. Note: Certificate of Rehabilitation and Expungement of PC 289(a)(1)(C) charges is not available (PC 4852 & 1203.4). If you or a loved on is charged with sexual penetration of a child who is 14-17 years of age, or California penal code section 289(a)(1)(C), contact our sex crimes criminal defense attorneys today for a free consultation. Our team of dedicated and highly experienced criminal defense attorneys have successfully represented hundreds of misdemeanor and felony sex crimes in the Inland Empire, including sexual penetration, sodomy , prostitution , child molestation, lewd act upon a child , oral copulation , engage in public lewd act, indecent exposure , sexual battery , rape by force or fear , "Peeping Tom" crimes , possession of child pornography , and more. Our award-winning attorneys are available every day of the week to discuss your case with you. Call today! 909-913-3138 Related Topics (2025) PC 289(a)(1)(B) Law & Defense PC 289 General Information Sex Crimes Defense Blog Expungement of CA Sex Crimes PC 289((a)(1)(C) Sexual Penetration by Object on Person 14-17 Years of Age by Force

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! 909-913-3138 Recent Articles (2025) PC 289(a)(1)(A) Law & Defense Possess Sadomasochistic Child Porn Statute of Limitations for Statutory Rape Lewd Act on Child by Force (PC 288(b)) PC 289(a)(1)(B) Sexual Penetration by Object Upon Child Fourteen (14) Years of Age by Force or Fear

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 Writ of Habeas Corpu s (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! 909-913-3138 Further Reading (2025) Sexual Penetration Crimes Overview Human Sex Trafficking Defense Oral Copulation by Threat of Arrest List of California Sex Crimes PC 289(a)(1)(A) Sexual Penetration by Object by Force or Fear: Law, Sentence, & Defense

Information on the crime of oral copulation by threat of arrest or deportation is found at California penal code § 287(k). This overview of PC 287(k) covers related penalties and common defenses to the crime of oral copulation by threat of deportation. For further information, contact our sex crimes criminal defense attorneys today for a free consultation. PC 287(k) Law Per PC 287(k), any person who commits an act of oral copulation, where the act is accomplished against the victim’s will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim, or another person, and the victim has a reasonable belief that the perpetrator is a public official, is guilty of oral copulation by threat of arrest or deportation (PC 287(k) Abbrev.). Oral Copulation Defined: Oral copulation is the act of copulating the mouth of one person with the sexual organ or anus of another person (PC 287(a)). “Copulating” is this sense means to sexually connect, such as to connect the mouth to penis (fellatio), or to connect the mouth to vagina (cunnilingus). A common slang term for oral copulation includes “oral sex.” Note: As used in PC 287(k), a “public official” is a person employed by a government agency who has the authority to incarcerate, arrest, or deport. The other person must have reasonably believed that the defendant was a public official even if he or she was not (Calcrim Jury Instruction 1015). Per Calcrim 1015, evidence of penetration of the vagina with the defendant’s tongue is not required to charge a violation of PC 287(k). Example: Deputy Sanchez informs Maria that he (Deputy Sanchez) will deport Maria’s mother from the United State unless Maria performs oral copulation on him (Deputy Sanchez). Result: Deputy Sanchez may be charged with oral copulation by threat of deportation (PC 287(k). Important: In the example above, it does not matter if “Deputy” Sanchez is not a real law enforcement officer. It only matters that Maria reasonably believes that Sanchez is a real law enforcement officer for PC 287(k) charges to apply against Sanchez. PC 287(k) Punishment The crime of oral copulation by threat of arrest or deportation is charged as a felony (PC 287(k). If found guilty of PC 287(k), the defendant may face up to three (3), six (6), or eight (8) years in a California state prison. Note: Whether the criminal court judge orders three (3), six (6), or eight (8) years of prison after a PC 287(k) conviction depends on many factors, including the presence of any mitigating or aggravating factors in the case, such as the level of sophistication incorporated by the defendant when he or she committed the offense, the defendant’s criminal history, the harm caused to the victim, the victim’s desire for prosecution, the terms of any plea bargain between the district attorney and defense attorney, and more. Probation Sentence: For purposes of PC 287(k), a probation sentence is a period of monitoring the defendant by a felony probation officer, as opposed to incarceration in a state prison. A probation sentence is allowed after a conviction for oral copulation by threat or deportation, but only if the defendant finds “unusual” circumstances related to the case that justify a probation sentence (See Factors Considered for Probation Sentence). Factors Considered for Probation: As stated, in PC 287(k) cases, the court will only grant probation where “unusual” circumstances related to the case justify a probation sentence and a probation sentence would be in the interest of justice, as opposed to a prison sentence. These “unusual” factors include, but are not limited to, the following: The defendant participated in the crime under circumstances of great provocation, coercion, or duress not amounting to a defense, and the defendant has no recent record of committing crimes of violence (ROC 4.413(c)(2)(A)); The crime was committed because of a mental condition not amounting to a defense, and there is a high likelihood that the defendant would respond favorably to mental health care and treatment that would be required as a condition of probation (ROC 4.413(c)(2)(B)); and The defendant is youthful or and has no significant record of prior criminal offenses (ROC 4.413(c)(2)(C)). State Prison Presumptive: If the defendant is not granted a probation sentence after a penal code 287(k) conviction, then he or she must serve his or her incarceration in a California state prison, as opposed to a local county jail. Additionally, no part of a prison sentence related to a conviction for oral copulation by threat of arrest or deportation may be “suspended,” or split (i.e., incarceration served alternatively on work release or house arrest). Note: If the defendant is granted a probation sentence after a PC 287(k) conviction, then the judge may order a period of incarceration in the county jail as a “term of probation.” However, incarceration related to a probation sentence is generally much shorter than the prison sentence that could have been imposed had the defendant not been granted probation. Good Conduct Credits: A prison sentence related to PC 287(k) may be reduced by up to fifty percent (50%) if the defendant serves his or her prison sentence with “good behavior.” For example, if the prisoner is ordered to serve a three-year prison sentence after a PC 287(k) conviction (low-term prison sentence), that prison sentence may be reduced to eighteen (18) months if the prisoner conducts himself or herself with good behavior for the first eighteen (18) months (PC 4019 & PC 2933). Crime of Moral Turpitude: The crime of oral copulation by threat of arrest or deportation is a crime involving moral turpitude . A crime involving moral turpitude is any offense that involves dishonesty or is otherwise morally abhorrent. Crimes involving moral turpitude, including PC 287(k) crimes, can lead to adverse consequences with immigration status (deportation of non-US citizens), licensed professionals (denial or revocation of license), and military status (denial of entry or discharge from military). Sex Offender Registration: PC 287(k) is a crime that requires sex offender registration with the DOJ upon criminal conviction (or upon release from prison). Sex offender registration for oral copulation by threat of arrest or deportation is classified as either a Tier-2 (20 Year Registration), or Tier-3 (Lifetime Registration) depending on several factors. For further information, see CA Tier Levels for Sex Offender Registration , Termination of Sex Offender Registration ( PC 290.5 ), & Requirements for Sex Offender Registration ( PC 290 ). Other Penalties: Additional penalties for PC 287(k) convictions include court security fees and fines, restitution orders, criminal protective orders (CPO), civil lawsuits, loss of firearm rights, loss of family law rights, loss of scholarship opportunities, lengthy parole terms, and more. PC 287(k) Common Defenses Common defenses used in penal code 287(k) cases include lack of reasonable belief the defendant was a “public official,” insufficient evidence that oral copulation took place, illegal search and search and seizure of evidence that renders that evidence inadmissible, failure to Mirandize the defendant before confession, statute of limitations , and more. Note: The fact that the defendant is not a public official does not defeat PC 287(k) charges, so long as the oral copulation victim reasonably believed that the defendant was a public official when he or she threatened arrest or deportation. For further information related to PC 287(k), oral copulation by threat of arrest or deportation, contact our sex crimes criminal defense attorneys today for a free consultation. Our successful team of award-winning criminal defense attorneys are passionate and highly skilled at defending all misdemeanor and felony sex crimes, including oral copulation crimes, and we can help you too. Call today! 909-913-3138 Recent Articles (2025) Oral Cop on Intoxicated Person Assault to Commit Oral Cop PC 288(a) Lewd & Lascivious Acts PC 288(b) Lewd Act by Force PC 287(k) Oral Copulation by Threat of Arrest or Deportation

Performing oral sex on a person who is too intoxicated to give valid consent, or effectively resist the sexual contact, is a crime in California (PC 287(i)). For purposes of California criminal law, oral sex is called “oral copulation.” This article covers the law, punishments, and defenses related to California penal code § 287(i) [Oral Copulation on Intoxicated Victim]. Note: Oral copulation is the act of copulating the mouth of one person with the sexual organ or anus of another person (PC 287(a)). Medical terms for oral copulation include fellatio (mouth to penis), or cunnilingus (mouth to vagina). Slang terms for oral copulation for oral copulation include "analingus" (mouth to anus), “blowjob,” “oral sex,” and many more. PC 287(i) Law Per PC 287(i), a person who commits an act of oral copulation, where the victim is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused, is guilty of oral copulation on an intoxicated victim (PC 287(i) Abbrev.). Similarly, the jury instructions related to the crime of oral copulation on an intoxicated person states “oral copulation is any contact, no matter how slight, between the mouth of one person and the sexual organ or anus of another person (Calcrim 1015). Note: Penetration of the sexual organ is not required to prove any oral copulation of an intoxicated victim. This is true even though the language of PC 287(i) uses the term “intercourse,” when defining oral copulation. Level of Intoxication: The law of penal code 287(i) does not use a Blood Alcohol Concentration (BAC) level to determine whether the victim is too intoxicated to consent or resist sexual touching. Rather, whether the victim is too intoxicated to voluntarily consent to sexual touching, or too intoxicated to resist a sexual touching, is determined by the facts and circumstances of the case. Example: John, who is feeling the effects of alcohol, sneaks into a bedroom at a house party. In the bedroom, John sees Sally, who is awake, but severely intoxicated. John knows that Sally is too intoxicated to understand what is happening or grant valid consent to sexual touching. Nevertheless, John decides to perform oral copulation on Salley. Sally does not complain during the oral copulation. Result: John may be charged with PC 287(i) and PC 243.4 (Sexual Battery). This is true even though Sally did not object to John sexual contact, because Sally was too intoxicated to validly consent or resist John. The fact that John is “feeling the effects” of alcohol himself is not a valid defense to oral copulation crimes. PC 287(i) Punishment Prison Sentence: Oral copulation upon an intoxicated person is charged as a felony in California. If found guilty of PC 287(i), the defendant could face up to three (3), six (6), or eight (8) years in a California state prison. A probation sentence without incarceration is not allowed in PC 287(i) cases. Note: Whether the court imposes a three (3) years prison sentence, a six (6) year prison sentence, or a eight (8) year prison sentence depends on the presence or absence of mitigating and aggravating factors, such as the defendant’s criminal history, the harm caused to victim, the level of remorse shown by the defendant, the relationship between the defendant and the victim, the terms of any negotiated plea bargain between the district attorney and the defense attorney, the level of sophistication related to defendant’s crime, and more. Example: After conviction for oral copulation of an intoxicated person, the court considers a “low term” prison sentence of three (3) years [“mitigated” prison sentence], a “midterm” prison sentence of six (6) years [“presumptive” prison sentence], or an eight (8) year prison sentence [“aggravated” prison sentence. The court finds that defendant took advantage of a position of trust when committing his crime. Therefore, the court decides the “aggravated” prison term of eight (8) years is most appropriate. Probation Sentence: A probation sentence, without or without a period of incarceration as a “term of probation” is not allowed in PC 287(i) cases. This means that any conviction for oral copulation of an intoxicated person results in some prison sentence. Also, no part of a PC 287(i) prison sentence may be “split,” or “suspended.” This means that the defendant must serve his or her full sentence in a California state prison, and no portion of that prison sentence may be served alternatively on an out-of-custody work release program (PC 1170(h) Sentencing). Sex Offender Registration: Per penal code 290, any conviction of an oral copulation crime results in mandatory sex offender registration with the DOJ. The length of sex offender registration in PC 287(i) cases is determined by the defendant’s risk of recidivism as determined on a Static-99 report. In any event, the length of sex offender registration after a PC 287(i) conviction is no less than twenty (20) years [Tier Two]. For more information, including the requirements related to sex offender registration, see PC 290 Requirements, Petition to Terminate Sex Offender Registration , CA Tier Levels for PC 290 Registrants , and Exclusion from Sex Offender Website ( PC 290.46 ). Three Strikes Law: Oral copulation upon an intoxicated victim is not a serious or violent crime, at least not as those terms are defined in the California penal code at 1192.7 and 667.5, respectively. This means that PC 287(i) is not a “strike” offense under California’s Three Strikes Sentencing Law. However, if the defendant has already suffered two prior “strike” convictions, and he or she is then convicted of PC 287(i), the PC 287(i) conviction may be considered a third “strike,” which can subject the defendant to life in prison. Crime Involving Moral Turpitude: Oral copulation on an intoxicated person is classified as a crime involving moral turpitude , or CIMT. A CIMT is any crime that is considered morally wrongs, as opposed to only statutorily wrong. CIMT, including penal code 287(i), carry additional punishments related to immigration status (deportation of non-US citizens), military service (discharge), licensed professionals (revocation or suspension of license), and more. Further Penalties: In addition to the punishments and penalties listed above, if found guilty of PC 287(i), the defendant could face civil lawsuits, criminal protective orders (CPO), court fines, court fees, court civil assessments, loss of family law rights, restitution orders in favor of victim, loss of voting rights, loss of firearm rights, long and harsh parole terms, and more. PC 287(i) Common Defenses Common defenses related to oral copulation of an intoxicated victim include evidence of false allegations, lack of sufficient evidence to prove victim could not reasonably consent or resist defendant, mistake of fact as to victim’s intoxication status, coerced confession rendered inadmissible, failure of police to read defendant’s “Miranda” Rights, statute of limitation , impeachment of victim’s version of event and/or scientific evidence , and more. For more information, see Defense Strategies in Criminal Sex Cases . Intoxication Defense: An intoxication defense is not ordinally allowed in oral copulation against an intoxicated person. However, if the defendant’s level of intoxication is to the degree that he or she did not understand the difference between right or wrong, or the defendant was so intoxicated at the time of his offense that he did appreciate the wrongfulness of his or her conduct, then an intoxication defense may apply (Same standard as used in insanity defense cases). Example: John and Wendy are both severely intoxicated. John’s intoxication level is the point where he does not understand the difference between right and wrong. Wendy is severely intoxicated, but not to the point where she does not understand the difference between right and wrong. Nevertheless, John and Wendy perform oral sex upon each other. Result: John might be allowed to use the intoxication defense against PC 287(i) charges, but Wendy should not be allowed to use the intoxication defense against her PC 287(i) charges. Note: Consent defense is not a defense to PC 287(i) charges for the reasons stated. However, if the victim is deemed sufficiently sober to voluntarily consent to oral copulation, or to reasonably and safely resist oral copulation, then consent is still an issue in the case. Example: John is charged with performing oral copulation on Sarah. Sarah claims she was too intoxicated to voluntarily consent to John’s sexual contact. The jury finds that Sarah was sufficiently sober to voluntarily consent, but also finds that Sarah did voluntarily consent to sexual contact. Result: John’s evidence that Sarah was not intoxicated to the point of rendering her incapable of consenting to oral copulation does not save him from a conviction, but the conviction might be reduced from a PC 287(i) to a PC 287(b)(1), a much less server oral copulation crime and possible even a misdemeanor crime (See PC 287(b)(1) ). Note: In order to consent, a person must act freely and voluntarily and know the nature of the act (Calcrim 1015). Also, evidence that the defendant and the oral copulation victim were dating or married is not enough, by itself, to constitute consent (Calcrim 1015). PC 287(i) Post-Conviction Relief After a conviction for oral copulation upon an intoxicated person, the defendant might have several post-conviction relief options, depending on the circumstances of the case. These include withdraw of a guilty or “no contest” plea, appeal the conviction , apply for termination of sex offender registration (limitations), petition the court for a certificate of rehabilitation (limited), or motion to exclude defendant’s name from Meagan’s law sex offender website ( PC 290.46 ). For more information on the California crime of oral copulation of an intoxicated person, or penal code 287(i), contact our sex crimes criminal defense attorneys today for a free consultation. Our highly skilled sex crimes defense lawyers offer free consultations with award-winning trial attorneys. Our success rate is second-to-none and we can help you too. Cal today! 909-913-3138 Related Articles (2025) Exclusion from PC 290 Website Oral Cop on Incompetent Person Rape in Concert & PC 264.1 Sexual Battery v. Sexual Assault PC 287(i) Oral Copulation of Intoxicated Victim: Law, Sentence & Defense

In California, oral copulation of an incompetent person is charged under penal code § 287(g). This overview discusses the law, punishments, and common defenses related to PC 287(g). For further information, contact our sex crimes criminal defense attorneys today for a free consultation. To begin, the term “oral copulation” is the act of copulating the mouth of one person with the sexual organ or anus of another person (PC 287(a)). “Copulating the mouth” is a reference to oral sex, or sexually motivated contact by the defendant to the genitals of another person. Medical terms for oral copulation are fellatio (mouth to penis) cunnilingus (mouth to vagina). Note: It is a crime to perform oral copulation against an incompetent person, or to have an incompetent person perform oral copulation on either the defendant, or a third person (PC 287(g)). PC 287(g) Law …any person who commits an act of oral copulation, and the victim is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known, or reasonably should be known to the person committing the act, is guilty of oral copulation upon an incompetent victim (PC 287(g) Abbrev.). Note: PC 287(g) requires the district attorney to prove that the incompetent person was incapable of granting consent. This is true even if the incompetent person is already a conservatee under a legal guardianship (PC 287(g) Abbrev.). PC 287(g) Punishment Prison Sentence: Oral copulation upon an incompetent person is classified as a felony in California. If found guilty of oral copulation of an incompetent person, the defendant could face three (3), six (6), or eight (8) years in a California state prison. A probation sentence, without incarceration may be available in “special” PC 287(g) cases (See Probation Sentence). Prison Term Selected: Whether the defendant is sentenced to three (3), six (6), or eight (8) years of prison after a conviction for PC 287(g) depends on the facts and circumstances of the case. A criminal defense attorney will argue for the lowest prison term of three (3) years based on the presence of “mitigating” factors, while the district attorney will argue for the highest prison term of eight (8) years based on the presence of “aggravating” factors. Mitigating & Aggravating Factors: Mitigating and aggravating factors considered in sentencing for PC 287(g) cases include the defendant’s criminal history, the level of sophistication of the offense, the harm caused to the victim, the remorse shown by the defendant, the terms of any negotiated plea bargain between the district attorney and defense counsel, whether the defendant confessed early in the case, the level of mental or physical incompetence of the victim, and more. Probation Sentence: A probation sentence is a period of supervised release, as opposed to a prison sentence. Probation sentences are allowed in PC 287(g) cases, but only in “special” circumstances. What is considered to be “special” circumstances in any oral copulation upon an incompetent person case includes, but is not limited to, the defendant’s criminal history, the level of sophistication of the offense, the victim’s desire to prosecute the case, the relationship between the victim and the defendant, the likelihood of defendant’s repeat offense, the amenability of the defendant to obey the terms of probation, and more. Prison-Presumptive Felony: An incarceration related to a convicted for penal code 287(g) is served in a California state prison, as opposed to a local county jail. Additionally, no part of the defendant’s prison sentence may be served alternatively on work release or house arrest, and no part of the defendant’s prison sentence may be suspended (aka “Joint-Suspension” Sentence). Sex Offender Registration: A conviction for oral copulation upon an incompetent person will require the defendant to register as sex offender with the Department of Justice (DOJ). The length of registration as a sex offender in PC 287(g) cases depends on whether the defendant is classified as a tier two (20-year registration), or a tier three (lifetime registration). Note: Tier three sex offender registration is required in PC 287(g) cases where the defendant’s risk of repeat of offense is “high” as determined on a standardized test meant to gauge such risk (SARATSO & STATIC-99 risk evaluation examinations) For more information, see Petition to Terminate Sex Offender Registration ( PC 290.5 ), California’s Sex Offender Tier Level Registration ( PC 290(a)-(d) ), & Sex Offender Registration Requirements ( PC 290 ). Crime Involving Moral Turpitude: Oral copulation upon an incompetent person charged under penal code 287(g) is a crime involving moral turpitude, or CIMT. A crime involving moral turpitude is any offense that is morally wrong or involves deceit. A CIMT conviction carries additional direct and indirect negative consequences, including possible deportation for non-US citizens, revocation of a professional license for licensed professionals (i.e., doctors, dentists, lawyers, etc.), discharge from the armed services for military personnel. Three Strikes Law: Oral copulation on an incompetent victim is not a serious or violent crime, at least as those terms are defined in the California penal code at PC 1192.7 and 667.5, respectively. However, if the defendant has already suffered two prior strike convictions under California’s Three Strikes Law, then a conviction of PC 287(g) may be considered a third strike, which subjects the defendant to a possible life sentence. More Punishments: In addition to the punishment and penalties listed above, if found guilty of oral copulation on an incompetent person charged under PC 287(g), the defendant may suffer criminal protective orders in favor of the oral copulation victim, monetary restitution for any financial loss to the victim (therapist bills, medical bills, etc.), loss of firearm rights, civil lawsuits, loss of scholarship opportunities, harsh and lengthy parole terms and conditions, and more. PC 287(g) Common Defenses Common defenses related to oral copulation against an incompetent person charged under PC 287(g) include lack of corroborating evidence, insufficient evidence to prove defendant’s guilty beyond a reasonable doubt, reasonable mistake of fact as to the incompetent person’s status as an incompetent person, illegal search and seizure of evidence, coerced or non-Mirandized confession , and more. Statute of Limitations Defense: The statute of limitations is the period in which the district attorney must bring criminal charges against the defendant. Failure of the district attorney to comply with the statute of limitations in any case can lead to dismissal of the criminal charges. The statute of limitations in oral copulation cases charged under PC 287(g) cases do not begin until law enforcement or mandated reporters learn of the offense. For more information, see Statute of Limitations in CA Sex Crimes . Consent Defense: The defense of consent does not apply to oral copulation upon an incompetent person case. The reason for this is that an incompetent person is legally incapable of granting consent (See PC 287(g) Law Above). However, if the “victim” is deemed capable of granting consent, either by the court, or by the jury, then consent to oral copulation is still a factual issue to be decided. In other words, a person deemed capable of granting consent does not mean that person. in fact, granted consent to oral copulation. If you or a loved one is charged with a violation of California penal code 287(g), or oral copulation upon an incompetent victim, contact our sex crimes criminal defense attorneys today for a free consultation. Our highly experienced team of award-winning and successful criminal defense trial attorneys have handled hundreds of misdemeanor and felony sex crimes in the Inland Empire, and we can help you too. Call today! 909-913-3138 Related Topics (2025) Oral Cop with Unconscious Person Attempted Rape & PC 664/261 Continuous Sexual Abuse of Child Entice a Minor into Prostitution PC 287(g) oral cop of incompetent victim: Law, Punishment & Defense