Sex crimes are among the most severely punished offenses in the state of California. They are the most taboo as well. A conviction can destroy a person’s reputation, affect their social status, and even cause the person to lose their livelihood. In addition to that, the punishment handed over by the judge is very harsh and may include lengthy prison terms and hefty fines.
At The Los Angeles Criminal Defense Attorney, we deal with all kinds of sex crimes, including Forcible Sexual Penetration. However, this severe offense is always ripe for false accusations, and the consequences are grave. That is why we are here to offer quality criminal defense to people living in Los Angeles, CA. If, therefore, you or your loved one is facing charges for forcible sexual penetration, get in touch with us. We might help get your charges dropped or reduced.
Understanding California Laws on Forcible Sexual Penetration
Forcible sexual penetration is a sex crime in California, provided under Section 289 of the California Penal Code. The offense is also referred to as forcible penetration through the use of a foreign object or sexual penetration through fear or force. Just like with other sex crimes, the state of California has very stringent laws on any person that is found guilty of forcible sexual penetration offense. Penalties could include lengthy prison terms, hefty penalties, and also a requirement to register as a state sex offender. It is therefore advisable to get yourself an excellent criminal defense attorney immediately if you are arrested or being investigated for forcible sexual penetration. Your attorney will plan a strong defense for you that could oblige the court to either reduce or drop your charges.
Forcible sexual penetration can be committed in several ways. If, for instance, a man subdues a woman by the use of physical force, then he inserts his middle finger into the woman’s vagina, this man could be charged with forcible sexual penetration. Again, if a group of youngsters in a party inserts a bottle inside the vagina of a woman who has had too much to drink in the party, they too could be charged under Section 289 of California laws. To understand this offense better and what could lead to a conviction, let us look at the legal definition of forcible sexual penetration.
Legal Definition
Forcible sexual penetration happens when a person commits an act of sexual penetration with another person against that other person’s consent. The act of penetration is accomplished by the use of an unknown or foreign object. It is also achieved through the use of violence, fear, duress, menace, immediate or illegal bodily injury or threats to retaliate. There are many different definitions of this offense in California. The types of penalties a person faces for this offense depend on the part of Section 289 of California laws with which they have been charged. The various definitions available include:
California Forcible Penetration Through Fear or Force
It is an offense that is committed when a person sexually penetrates another against their consent by use of fear or force. To understand this offense even better, let us look at the various elements of this offense. These are the particulars of the case, which the prosecutor must demonstrate before the court for a defendant to be found guilty of the offense:
- That the offender committed the act of sexual penetration with the alleged victim
- That this act of penetration was done by the use of a foreign or unknown substance object, device, or instrument
- That this act was committed against the victim’s consent
- That the defendant achieved this act through violence, force, menace, duress, fear of unlawful and immediate physical injury of threats for future physical harm.
The Use of a Foreign/Unknown Object
From this legal definition, sexual penetration, as provided under Section 289, has to be accomplished by the use of a foreign/unknown object. The definition of sexual penetration from California laws includes the commission of these acts with a resolve to get sexually aroused, sexually gratified, or to sexually abuse another person:
- Penetrating the anal or genital opening of another person, however slight that penetration is
- Causing another person or a third party to penetrate your or your victim’s anal or genital opening, however small that penetration is
- Causing another person to penetrate their anal or genital opening, however, small the penetration is
Penetration by use of an external object means that the act can be done by the use of nearly any object out there, whether it is a part of the body, or any other object as long as the use of a sexual organ does not accomplish it. Note that penetration by use of a sex organ is what is referred to as sexual intercourse. When it is done without the other person's consent, the offender could be charged with rape as provided under Section 261 of California laws.
Example: A man kidnaps a teenage girl from the park. He drives the girl to his home and threats to kill her if she doesn't comply with what he asks of her. The man orders the girl to masturbate as he does the same to himself. This man could be charged with forcible penetration through the use of fear.
Note that forcible penetration is possible even if the girl is still a virgin. Penetrating the girl’s labia majora is enough to convict the person of this offense.
Again, this offense is completed when the penetration is done for sexual gratification, arousal, or sexual abuse. The latter, in this case, means that the offender commits the offense to cause an injury, discomfort, or pain to the victim.
Example: Two men, Tedd and Josh, get into a fight with James in a bar. James is the tough guy who has been harassing and intimidating other guys in the neighborhood. The two men decide to teach James a lesson that night. They wait for and abduct him in the parking lot as he is leaving the bar that night. They then drive him to the park, where they thrash him up, then insert a bottle into his anal opening. Even if the penetration is not done to arouse the men sexually, Tedd and Josh will still be guilty of forcible penetration through force or fear. It is because it was done to cause James' pain, which in itself is sexual abuse.
Penetration was Against the Victim’s Consent
The penetration must have been done against the victim’s consent. Most similar sex crimes, such as oral copulation through fear or force, have the same essential element, which is the lack of victim's consent. Agreeing to sexual penetration could happen if the person:
- Acts voluntarily or freely
- Understands what the act entails
The facts below, by themselves, are not sufficient to verify that a person gave consent to the sexual penetration:
- That the alleged victim and the defendant were or had been in a dating relationship
- That the alleged victim and the defendant had been or were married
- That the alleged victim had requested the offender to use protection such as a condom
Forcible penetration is also a serious offense, just the same as penetration by use of an unknown object. For a person to be found guilty of forceful sexual penetration, they must have achieved the penetration by use of:
- Force: The physical force used in this case must be enough to overwhelm the other person and act against their will
- Violence:
- Duress: It means implied or direct threat of violence, force, hardship, danger, and retribution. These are enough to cause the other person to submit or do something that they would otherwise not have done.
- Menace: This is done by use of a statement, threat or an act that shows the other person’s intent to harm a person
- Threats of unlawful and immediate bodily harm
- Threats to get revenge if the alleged victim doesn’t submit. It could be achieved through kidnapping, confining, or retraining the person or inflicting severe pain or serious physical injury on the person. A person could also threaten to retaliate through the death of the victim or another person
California Forceful Sexual Penetration of Disabled Persons
California forcible penetration, as provided under Section 289 of the state laws, does not always have to be accomplished by use of coercion, force, violence, and threats, among other things. There are instances when a person can be found guilty of the offense even if they did not use force or fear on their victim. This could happen in such an instance as:
- If a person sexually penetrates another person and this person has a physical or developmental disability, or mental disorder, which makes it hard for him/her to understand the act and its consequences
- If the person knows or should have reasonably recognized that the person they are sexually penetrating has a disability or disorder that prevents them from legally submitting to the act
Example: This offense could be committed by a person who works or regularly visits a home for the mentally disabled. If through such visits or work, the person penetrates or causes a patient in the group home to penetrate him/her sexually, the court could find this person guilty of forceful sexual penetration even if they did not use any fear or force.
California Forceful Sexual Penetration of Unconscious Persons
Forcible sexual penetration is also an offense if it is committed to a person that was unconscious. A person may be guilty of this offense if they do the following:
- They engage in the act of sexual penetration by use of an unknown object on a person that is unconscious and therefore unaware of what the act entailed
- that the offender was well aware that the person is not able to resist the action because of their unconscious state
Note that the victim doesn't have to be physically unconscious for the law to be applied. However, they have to be unconscious the act itself, which means that:
- They were physically insensible or asleep at the time of the commission of the offense
- They were not aware that the action was taking place
- They were unaware of the crucial characteristics of the said deed because the offender lied to them, tricked them or hid information about the nature of the act
Example: Forcible penetration of an unconscious person could be committed by a massage therapist who uses a relaxing massage. If the sexual penetration happens in the course of the therapist's massage, and in the process, the therapist is sexually aroused from it, the court could find him/her guilty of California Legal Code 289. It is because the therapist could be tricking his/her patients, and so they are unaware of the exact nature of his/her actions.
California Forceful Penetration of Intoxicated Persons
Just like a knocked out person, a drunk person may not be in a position to consent to any sexual penetration by use of an unknown object. For that reason, a person can be guilty of forcible sexual penetration if the victim involved was intoxicated. To be found guilty of this offense, the prosecutor must prove these facts before the court:
- That the alleged victim was intoxicated at the time of the commission of the crime, for that reason, he/she was incapable of giving consent or resisting the act. Intoxication, in this case, might have been caused by the use of alcohol, drugs, or any other intoxicating substance
- That the defendant was well aware or should have reasonably known that the alleged victim was not capable of giving consent or resisting the sexual penetration
However, many arguments could arise from these elements, mainly because most sexual encounters happen when both or one of the partners is intoxicated. For that reason, the court must be sure beyond any reasonable doubt that the alleged victim was incapable of giving consent to the act. In California, a person could be too drunk to give consent if they are not able to understand the moral and manner of the penetration or its likely consequence.
Penalties for California Forceful Sexual Penetration
California forcible penetration is a grave offense, just the same as other sex crimes in the state. It is convicted as a felony, attracting such potential penalties as:
- Formal or felony probation- This is, however, only available in cases involving disabled persons. Those people found guilty of California Legal Code 289 for forcible penetration of intoxicated or unconscious persons or forcible penetration by fear or force may not get probation after conviction
- Three, six or eight years of incarceration
- Maximum fines of $10,000
California laws are very protective of minors, which is individuals under the age of 18 years. For that reason, the potential penalties listed above will increase if the alleged victim was a minor. Possible penalties, in this case, will be:
- Six, eight or ten years of incarceration if the alleged victim was 14 years or older at the time of the commission of the offense
- Eight, ten or twelve years of imprisonment if the alleged victim was below 14 years old
Registering as a Sex Offender
In addition to criminal penalties provided after conviction, the court could order California sex offenders to register as sex offenders for a specified period. The state has a 3-tier system for these registrations. Low-level sex offenders register under the first-tier system, for a minimum period of ten years. The second-tier system is for the mid-level sex offenders, who must register for a minimum period of 20 years. Finally, there is the third-tier system for higher-level sex offenders, whereby they are required to register for the rest of their lives.
Most misdemeanors and some forcible sexual penetration felony offenders in the state are required to register under the first-tier registration system. These are, generally, offenders who face charges under parts C, G, F, I, and H of California Forcible Sexual Penetration laws.
Other felonies, such as those that involve forcible sexual penetration through threats to retaliate against their victim or another person in the future call for sex offender registration under the second-tier registration system. The same applies to felonies involving victims who are incapable of consenting because of their physical or developmental disability or mental disorder.
Sex offenders who are required to register under the third-tier system are those who use coercion or force against their victim, whereby the alleged victim is a minor of below 14 years. The alleged offender is at least more than ten years older than the victim. The same applies to cases involving victims who are unconscious or too drunk to give consent.
What this means is that every one that is convicted under California legal Code 289 is subject to register as a sex offender in the state. Laws regarding registration of sex offenders require convicted offenders to list their names with the law enforcement agency in the city of their residence. This registration must be renewed in the following manner:
- Yearly, within five weekdays of their birthdate
- Every time the offender changes residence
Possible Legal Defenses for California Forcible Sexual Penetration Charges
From the potential penalties listed above, California forcible sexual penetration is among the most dangerous sex offenses in the state. A conviction can change so many aspects of a person's life, including social and professional issues. That is why it is advisable to try and fight the charges to get a reduced charge or to have the charges dropped. This is where the help of an experienced criminal defense attorney comes in. An experienced attorney will understand the right legal defense strategies to employ, depending on your specific case. Some of the defenses that could be used in this case include:
That there was Consent
One of the main elements of this offense, as provided under Section 289 of California laws, is that the act is done against the alleged victim's will. If therefore, there was consent, the offender cannot be found guilty of forcible sexual penetration. Matters concerning approval are usually difficult to substantiate beyond any reasonable doubt. If your attorney argues that there was indeed consent, he/she will be casting doubt on the prosecutor's case. If the prosecutor is not able to demonstrate beyond any reasonable doubt that consent was not given, the case could be dismissed, or the offender might get more lenient charges.
You had a Good Reason to Believe that Consent was Given
This is an excellent defense to use if the plaintiff did not consent to sexual penetration. There are many ways in which people give consent. If a person does not resist, for instance, the other person may have a good reason to think that they have consented to the act. This is possible in cases involving current or former sexual partners. Since there are many situations whereby there have been doubts about a person's consent to particular sexual acts, having a reasonable belief is a solid defense.
False Accusations
Most sex crimes are usually ripe for false accusations. Some people are capable of accusing others of such severe offenses out of jealousy, desire for revenge, or anger. For that reason, a person can be accused falsely of forcible sexual penetration. Most of these cases are those that involve a current or former sexual partner. The accuser could also be the parent, friend, or child of a current or previous sexual partner, romantic or business rivals, and any other person that might have resentment against the alleged offender. A competent criminal defense attorney will be able to use physical evidence and alibis, among other things, to demonstrate to the court that you couldn’t have committed the offense. If successful, your charges will be dropped.
Find a Los Angeles Criminal Defense Attorney Near Me
If you or your loved one are facing charges in California for forcible sexual penetration, it is essential to get in touch with a criminal defense attorney immediately. This way, you can build a strong defense that might compel the court to either drop or reduce your charges. At The Los Angeles Criminal Defense Attorney, we have a team of competent criminal defense attorneys who can use their best skills and experience to help you get a fair judgment. Call us at 310-564-2605 if you are in Los Angeles, CA, and let us walk with you through the legal process.
