Review of the Crime of PC 289 Forcible Sexual Penetration
California Penal Code 289 PC describes the felony crime of forcible penetration with a foreign object as penetrating the vagina or anus of a victim using a foreign object by use of force or fear, without their consent.
A conviction is punishable by up to eight years in a state prison. However, if the victim was a minor under 14 years old, then time in prison increases to 12 years.
In most cases, you would also be required to register a sex offender as a tier-three offender described under Penal Code 290 PC.
California prosecutors aggressively pursue convictions for sexual related crimes, especially those felony level offenses when victims can't give consent due to a:
- mental disorder,
- physical disability,
- a minor, or
- were too intoxicated to resist.
Penal Code 289 PC, forcible penetration with a foreign object is a close next, but significantly more serious sex crime that carries a maximum sentence of eight, ten, or twelve years of imprisonment, sentences that are ten times as long.
Prosecutors may charge both Penal Code 243.4 sexual battery and Penal Code 289 foreign object sexual assault in the same case, in the alternative because sexual battery is a lesser included offense of forcible sexual penetration with a foreign object.
The Constitution's double-jeopardy clause would generally preclude convicting on both crimes at once. The small factual difference but very large difference in penalties between the two crimes makes it critical that the defendant know the difference.
Our Los Angeles criminal defense lawyers are providing readers a more detailed review below.
What Is Forcible Sexual Penetration with a Foreign Object?
California Penal Code 289 PC titles foreign object sexual assault as a crime against nature. The crime's nature is the perpetrator's introduction of:
- any foreign object,
- instrument, or
- device other than a sexual organ,
- into the genital or anal opening of any person against their will,
- for the perpetrator's sexual gratification.
Forcible penetration with a foreign object technical definition, though, is important to understanding both the precise nature of the charge and how criminal law specialists would approach its strategic defense.
California Penal Code 289(a)(1)(A) defines forcible penetration with a foreign object as:
- “anyone who commits an act of sexual penetration when accomplished against victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.”
While sexual penetration may sound like rape involving the male sex organ, Penal Code 289(k)(1) instead defines penetration, in that crime-against-nature manner, as introducing a foreign object, substance, instrument, or device.
Thus, the crime would include using a bottle or broom handle, although a medical instrument would be another such device.
The related California crimes include Penal Code 287 PC oral copulation by force, and Penal Code 261 PC rape.
Turning Sexual Battery into Foreign Object Sexual Assault
Importantly, and perhaps surprisingly, Penal Code 289(k)(2) adds to the definition of a foreign object, substance, instrument, or device, any part of the body other than a sexual organ.
What this addition means is that introduction of a hand, for instance, or toe or tongue, would suffice for forcible sexual penetration with a foreign object.
That inclusion of the hand or other body part is what makes forcible penetration with a foreign object a much more serious crime than sexual battery.
If a sexual battery's touching happens to include the entry of a finger into the victim's genital or anal opening, then the sexual battery is no longer simply that crime but now the much more serious forcible penetration with a foreign object, punishable by several years in prison rather than six months to a year in jail.
Other forms of PC 289 forcible penetration with a foreign object
Penal Code 289(a)(2) adds a threat of retaliation against the victim or any other person to the list of coercive means to accomplish the crime.
The perpetrator need not use force or fear of immediate injury if instead uses threats of future injury.
Penal Code 289(b) adds committing the foreign object penetration crime against a person incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, if the perpetrator knows or reasonably should know of the incapability.
Penal Code 289(d) adds committing the penetration crime against an unconscious person, if the perpetrator knew of the unconsciousness, defined to include not just unconsciousness but also asleep or unaware.
Enhanced Penalties for Penal Code 289 PC
Penal Code 289 PC increases it's up to eight-years penalty for forcible sexual penetration with a foreign object if any of the following additional elements are present:
- the victim is a child under age fourteen years, in which case the penalty is up to twelve years in prison, Penal Code 289(a)(1)(B);
- the victim is a minor fourteen years or older, in which case the penalty is up to ten years in prison, Penal Code 289(a)(1)(C).
Further, as stated, if you are convicted under Penal Code 289 PC, you will be subjected to California's sex offender registration requirement.
The Sex Offender Registration Act requires convicted sex offenders to register with their local police station where they live.
Defenses for Sexual Penetration with a Foreign Object Charges
Such long terms of imprisonment, not to mention reputation and career also at stake, warrant aggressive representation from experienced criminal defense attorneys. Some common defenses include:
- victim gave actual consent,
- you had a reasonable belief victim consented,
- no sexual penetration,
- false allegation.
In some forcible penetration with a foreign object cases, prosecutors can find these charges difficult to prove when the alleged victim and perpetrator give opposite accounts.
Moreover, forcible sexual penetration with a foreign object is a crime in which the prosecution must show the defendant's specific intent or guilty mind.
No one can get in the defendant's head. Evidence of intent is necessarily circumstantial, often readily contradicted with other circumstances or the defendant's own testimony.
We might have the evidence to raise reasonable doubt over whether the alleged acts occurred or occurred with the defendant's specific intent.
Defendants also often relate that the other party gave consent to whatever act the evidence proves.
Sexual assault charges often raise these fact issues, reasonable doubt on any one of which defeats the charges. Police misconduct in the search for sexual battery evidence, including the defendant's interrogation, may also require suppression of evidence.
Contact Eisner Gorin LLP for Help
Our sex crime defense attorneys have the skill and experience to defend the most serious felony sexual related charges.
We might be able to negotiate with the prosecutor for reduced charges or even a case dismissal.
It might also be possible to convince the prosecutor from filing formal charges before court through prefiling intervention.
A conviction of Penal Code 289 forcible sexual penetration with a foreign object will impact the rest of your life as you will be required to register as a California sex offender.
Eisner Gorin LLP are a top-rated criminal law firm who has successfully defended all types of misdemeanor and felony sex offenses for many years.
Our office is located at 1999 Avenue of the Stars, 11th Fl., Los Angeles, CA 90067.
Our main office is in the San Fernando Valley at 14401 Sylvan St #112 Van Nuys, CA 91401.
Contact our firm a free immediate response at (877) 781-1570.