Sodomy in California – Penal Code 286 PC
Sodomy is a sexual act involving any penetration involving the penis of one person and the anus of another. The length of time in which penetration occurred is not a factor, and ejaculation is also not required.
California Penal Code 286 PC is the primary statute that makes sodomy a crime in specific situations, such as an adult committing sodomy with a minor or using force, fear, or threats on anyone to accomplish the act.
PC 286 legal definition says, “Sodomy is sexual conduct that consists 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.”
Sodomy is legal if it's a consensual act between adults. It becomes a crime when it is perpetrated on a minor or against an adult's will. For example, when a man has anal sex with a woman after making threats of harm unless they comply.
Prosecutors can file PC 286 sodomy charges as either a misdemeanor or felony, called a “wobbler.”
The crime of sodomy is divided by statute according to the victim's age and if the conduct was consensual. As noted, when two adults engage in sodomy consensually, it is not illegal. Our California criminal defense lawyers will look at this law below.
When Does Sodomy Become a Crime?
Sodomy becomes a crime when certain relevant factors apply. Anyone who gives consent must be able to do so voluntarily of their own accord and clearly understand what constitutes the act of sodomy. Penal Code 286 is the California statute that outlines the specifics that make sodomy illegal when it's:
- done using force, fear, or violence
- done on someone unable to give consent due to intoxication,
- done on someone with a disorder, physical disability, or unconsciousness,
- done on a prison inmate,
- done on a minor.
One example includes a scenario where sodomy occurred between a minor and an adult who perpetrated threats, intimidation, force, etc. Further examples are listed below.
What Statutes Define Illegal Acts of Sodomy?
- Penal Code 286(b)(1) describes the illegal act of sodomy with someone who is under 18 years old;
- Penal Code 286(b)(2) is used when someone is over 21 years and engages in sodomy with a person under 16 years old;
- Penal Code 286(c)(1) describes the act of sodomy with a minor under 14, and the age difference between the two exceeds ten years;
- Penal Code 286(c)(2)(B) for sodomy with a minor under 14 when using force, violence, coercion, or fear;
- Penal Code 286(c)(2)(A) is used to charge someone when sodomy occurs using force, violence, duress, menace, or fear;
- Penal Code 286(c)(3) for sodomy occurring by threatening to retaliate in the future against the victim or other person;
- Penal Code 286(d)(1) if sodomy occurred with an accomplice against the victim's will using force or fear;
- Penal Code 286(f) when sodomy occurs on someone unable to give consent due to being unconscious or incapacitated, including people with mental disorders or physical disabilities;
- Penal Code 286(k) when sodomy is accomplished against someone's will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim;
- Penal Code 286(i) for sodomy with a victim prevented from resisting by any intoxicating or controlled substance when the condition was known or reasonably should to the defendant.
What are the Penalties for a Sodomy?
Some forms of sodomy are wobblers that can be charged as misdemeanors or felonies, depending on the case's specific details and if there are any other aggravating factors, such as prior convictions.
A sodomy offense is a wobbler when committed with a minor or involves prison inmates. If you are convicted of a misdemeanor case of sodomy, the penalties include a fine of up to $1,000 and up to one year in county jail.
A felony case of sodomy carries a maximum three-year prison sentence and a fine of up to $10,000. In either type of sodomy charge, a conviction usually requires sex offender registration under Penal Code 290 PC.
What Are the Related Crimes?
In California, there are numerous charges related to sodomy, such as:
- Penal Code 261 PC – rape,
- Penal Code 261.5 PC – statutory rape,
- Penal Code 264.1 PC – gang rape,
- Penal Code 288i PC – lewd acts with a minor,
- Penal Code 288.5 PC - continuous sexual abuse of a child,
- Penal Code 289 PC – foreign object sexual penetration,
- Penal Code 243.4 PC – sexual battery.
How Can You Fight Sodomy Charges?
There are some common legal defenses for a sodomy charge, including the following:
- The victim made a false allegation;
- the victim” gave consent to the act;
- you were unaware of the victim's actual age when the act occurred.
A detailed criminal investigation must occur, and reasonable evidence must be provided to use false allegations as a defense. Perhaps the alleged victim makes the allegations due to anger or jealousy after a relationship breakup. Maybe it could be argued that consent was given to the defendant at the time.
Perhaps we could argue there was a mistake of age when the victim was a minor, but they lied about their age or appeared physically older. Readers should note that this type of defense must be reasonable under the circumstances. Otherwise, you could lose all credibility with the judge or jury.
Perhaps we could make an argument there was no anal penetration. Recall that a prosecutor must prove, beyond a reasonable doubt, that there was the penetration of the anus of the alleged victim by the penis of the defendant.
Perhaps we could persuade the District Attorney's Office not to file formal criminal charges through prefiling intervention. Likewise, we might be able to negotiate to get the charges reduced or even dismissed.
Eisner Gorin LLP is based in Los Angeles County, California. You can contact us for a consultation by calling (877) 781-1570 or using the contact form.