Forcible Sexual Penetration

California has strict sex crime laws, and prosecutors execute the full extent of the law. You might be confused and scared if you have been charged with PC 289. It is understandable; the crime is a felony carrying ruinous effects like social stigma, incarceration, fines, and probation. You should consult a seasoned Palm Desert defense attorney to avoid a PC 289 conviction and its penalties. Desert Defense Lawyers can offer the aggressive legal representation you need to obtain the most favorable case outcome. Our goal is to have your charges reduced or dismissed, and if the case proceeds to trial, we can represent you in court.

What is California Forcible Sexual Penetration Using a Foreign Substance?

There are various descriptions of penetration using an object, based on the Penal Code Section 289 PC subsection the prosecutor filed.

By Fear/Force

The definition of penetration by fear/force contains the following crime elements:

• You engaged in the conduct of sexually penetrating another individual.
• You achieved sexual penetration using an object, device, instrument, substance, or an unidentified object.
• The other party had not agreed to the penetration.
• You engaged in sexual penetration using violence, duress, force, menace, fear of illegal bodily injury, or threats of future physical injury.

The section below explores these crime elements to improve your understanding of their legal meaning.

Sexual Penetration Using a Foreign Object

The law defines penetration when accomplished with sexual abuse, gratification, or arousal intent as any of the following:

1. Penetration, however insignificant, of the anus or genital area of the victim’s opening.
2. Making the victim penetrate, no matter how negligible, the opening to their genital or anus.
3. Making the victim penetrate the private parts opening of your or another person, regardless of how slight.

A foreign object could imply any substance, including body parts, except sexual organs. Sexual penetration into the genitalia is considered sexual intercourse. If sexual intercourse is committed without the victim’s consent, it can result in rape charges under PC 261 PC.

If the alleged victim is a female, then penetration can happen even if you did not penetrate her genitalia. Sexual penetration of a female victim’s outer lips (labia majora) is sufficient.

The definition of this criminal conduct is met if you are engaging in it with arousal, gratification, or sexual abuse intent. California’s sexual abuse is defined as sexual penetration to inflict discomfort, pain, or injury.

Non-Consensual Forcible Penetration

Consensual penetration occurs when both individuals:

1. Act voluntarily and freely.
2. Understands their actions.

The following case facts, on their own, will be insufficient to show the accuser agreed to penetration:

1. The defendant was dating or had previously dated the victim.
2. The victim asked the accused to use a condom/protection.
3. The alleged victim was the defendant’s spouse or ex-spouse.

Forcible Sexual Penetration

Before finding you guilty, the prosecution must prove that you achieved the crime commission through any of the ways below:

1. Violence.
2. Force — Adequate body force to subdue the other individual’s will.
3. Menace — It implies a threat, utterance, or behavior demonstrating an intent to cause harm to a person.
4. Duress means direct or indirect threats of using violence, force, hardship, danger, or punishment that might lead a reasonable individual to engage in acts they could not do.
5. Retaliation threats — Threatening to kidnap, restrain unlawfully (confine), or inflict severe pain, great bodily injuries, or actual death to a third person or the victim if the alleged victim fails to comply.

Forcible Sexual Penetration of a Person Living with Disabilities

You can be convicted of forcible penetration under Penal Code Section 289 without using coercion, violence, or duress.

Perfect examples include when you:

• Engage in forcible penetration with a person who suffers from a mental illness or physical or developmental impairment that hinders them from knowing the form and potential consequences of the sexual act.
• Are aware and should have been aware that the victim’s mental disability or health condition would hinder them from lawfully consenting.

Forcible Penetration of a Non-Conscious Individual

You are found guilty if:

• You committed forcible penetration using a foreign substance with a person who was unaware of the sexual act’s nature.
• You knew the person could not resist because of unconsciousness.

The alleged victim must have lost consciousness for this California law section to apply. The term “unconscious of forcible penetration’s nature can imply that the victim:

• Was asleep or unconscious.
• Did not know the sexual act was happening.
• Were unaware of the critical nature of the sexual conduct because you lied to, tricked, or concealed the act details from them.

Forcible Sexual Penetration of a Drunk Individual

Finally, you can be convicted under California Penal Code Section 289 if you engage in forcible penetration using a foreign substance, and the following apply;

• The other party cannot resist due to the influence of alcohol or drugs.
• You were aware or ought to have known that they were incapable of consenting due to this.

However, as it relates to this legal provision, an individual is deemed too under the influence to permit if they cannot understand and consider:

• The moral and physical characteristics of forcible penetration.
• It is probable repercussions.

California Penalties and Consequences of Violating Penal Code 289

Forcible sexual penetration using a foreign substance is a felony. It carries the following penalties:

• Felony probation (if the alleged victim lives with disabilities).
• Three to eight years in state prison.
• A $10,000 maximum fine.

PC 289 Involving a Juvenile

If the victim is a juvenile at the time of the crime commission, the court will enhance the probable incarceration time to:

• Six to ten years in state prison if the minor is 14 or older.
• Eight to twelve years in California prison if the victim is below 14.

Sex Offender Registration

Violation of PC 289 will subject you to a compulsory sex offender registration requirement. Your case facts determine whether you should register as Tier I, II, or III.

You should register as a Tier I sex offender for ten years if you violated subsections i, h, g, f, and c of Penal Code Section 289. The judge should not require you to register on PC 289 (i) and (h) when:

• The minor was older than fourteen at the time of the incident.
• You are not ten (10) years older than the victim.

You should register as a Tier II sex offender for twenty years if:

• You achieved the conduct against the victim’s consent by threatening to retaliate later against them or somebody else.
• The victim could not consent due to physical or developmental disabilities or a mental health condition at the time of the crime.

You are a Tier III sex offender (with a lifetime registration) if:

• The penetration was by duress or force.
• The alleged victim was below 14 and at least 10 years younger than you.
• The alleged victim was unconscious.
• The victim was too drunk to consent.

Duties of Sex Offenders

Registration under PC 290 means you should inform law enforcers of your whereabouts, provided you attend school, live, or work in the Golden State.

To meet the initial reporting requirements, you must provide your address to a law enforcement agency within five (5) days of your sentence, discharge from a mental health treatment facility/hospital, or release from detention, depending on the earliest release into your community.

After the registration, the court will tell the Department of Justice (DOJ). The DOJ will track your reporting adherence. Your information that the public can access on the DOJ’s website includes the following:

1. Your full name.
2. Your photograph.
3. Identifying details like scars, tattoos, known aliases, eye color, weight, and height.
4. The underlying crime.
5. When you were found guilty.
6. The year of your release.

What Happens If You Fail to Register?

The consequences of failing to register as a sex offender depend on your underlying sex offense. Since PC 289 is a felony, the court will convict you of a felony for breaking PC 290. It is punishable by the following maximum penalties:

1. Formal/felony probation.
2. Three years in California state prison.
3. Ten thousand dollars in fine.

The violation cannot result in damaging immigration penalties. However, it can affect your gun rights; felons in California are banned from possessing or purchasing firearms.

Fighting Your PC 289 Sex Crime Charges

The following case defenses are effective with judges, prosecutors, and juries.

You Reasonably Thought You Had Consent

Most members of the jury can relate to situations in which there is ambiguity regarding a sexual partner’s agreement to a specific penetration act. That you reasonably believed your sexual partner agreed is one of your strong defenses to charges of sexual penetration.

Your attorney can investigate your electronic communication with the victim to prove both parties' states of mind. The District Attorney (D.A.) ought to dismiss your case, provided there is enough cause to show reasonable consent.

The Alleged Injured Party Agreed to Forcible Penetration

In most Penal Code Section 289 cases, it can be difficult for the District Attorney to demonstrate a lack of consent beyond a reasonable doubt because cases mostly end up in back-and-forth allegations.

Your lawyer can review the accuser’s voicemails and texts from the incident. If they show nothing was off or that the other party consented, the California D.A. could have to dismiss the charge due to a lack of evidence.

False Accusations

In many forcible penetration cases, the accuser might make baseless sexual penetration using fear or force accusations because they are angry, regretful, or vengeful. Typically, the defendant is a former or current partner. Additionally, the accuser can be resentful of their loved one.

The most effective way to beat false accusations is to use CCTV recordings, alibis, or other tangible proof to prove that you did not violate the offense. The prosecution can dismiss the charges after discovering that their case against you has loopholes.

Related Crimes

The following are some related crimes that the prosecutor can charge alongside or instead of PC 289:

California Penal Code Section 287 (Oral Sex By Fear or Force)

Oral intercourse using force is almost similar to PC 289, but the former crime involves oral sex.

Oral sex using fear or force is a felony. The probable prison term is similar to that for sexual penetration. Generally, it is three to eight years, but it can increase to a twelve-year sentence if the alleged victim is a juvenile.

Penal Code Section 261 (Rape)

California Penal Code Section 261 describes rape as non-consented sexual penetration achieved through:

• Force.
• Threats.
• Fraud.

The crime is a felony punishable by three to eight years in state prison.

Penal Code Section 243.4 PC (Sexual Battery)

California Penal Code Section 243.4 deals with inappropriate touching of somebody else’s genitalia without their permission with sexual arousal, gratification, or abuse intent.

It is a wobbler; the prosecutor can charge the offense as a felony or misdemeanor. The maximum prison term for a felony is four years.

Based on your case’s facts, your lawyer can work to reduce your PC 289 charges of sexual battery, which has a lighter prison sentence.

Clearing/Erasing Your PC 289 Criminal Record

Criminal records are public records, and anyone can access them. A criminal record can negatively affect your ability to secure employment, housing, and educational opportunities in the future. Fortunately, California has various options for erasing or clearing your name, giving you a fresh start.

Expungement under PC 1203.4

Expungement allows you to withdraw your no-contest or guilty plea to re-enter a not-guilty plea and dismiss your criminal case. The process releases you from your conviction’s limitations.

To qualify for expungement, you:

• Must have completed your California felony probation.
• Are not charged with a crime, on probation, or serving time.

Please note that you cannot expunge your criminal record if you were found guilty of sexual penetration with a child below fourteen who is ten years younger than (PC 289(j)).

Expungement does not end your responsibility to register as a sex offender.

Certificate of Rehabilitation (COR)

Unlike California expungement, COR relieves you of sex offender registration responsibility.

You can apply for COR seven (7) to ten (10) years from probation/parole or after the release from police custody (whichever is earliest) if you satisfy the requirements below:

• The judge expunged your criminal charges.
• The judge has not found you guilty since the court dismissed your case.
• The judge has not placed you on probation for committing another felony.
• You have resided in the state for more than five (5) years before your application.

Like expungement, COR is unavailable if you were found guilty of sexual penetration with a child below 14 whom you are ten years older than (PC 289(j)).

Governor’s Pardon

The gubernatorial pardon is the utmost legal relief for registered sex offenders, regardless of their alleged criminal charges.

The pardon will not erase your criminal records, and potential employers can learn of your prior PC 289 conviction. However, per California’s “ban the box” law, specific companies are prohibited from asking about arrests or convictions until late in the job application process.

There are three ways of obtaining a governor’s pardon:

• Bringing a COR petition to the superior court.
• Applying directly to the governor’s office.
• Receiving a recommendation for a pardon from the Board of Parole Hearing (if you are still in prison).

Failing to register as a sex offender per PC 290 can hurt your possibility of obtaining this post-conviction relief. The governor only grants relief to defendants who meet all their requirements and have not committed another crime.

Statute of Limitations

A statute of limitations limits how long a prosecutor should take following an incident before charging a defendant.

Under Penal Code Section 801.1, the prosecutor must charge you with PC 289:

• By the alleged victim’s 40th birthday, if the alleged victim was a minor when the crime occurred.
• Within ten years of your incident, if the alleged victim was above 18.

While Penal Code 801.1 PC is straightforward, two exemptions to this rule apply, including:

Penal Code Section 803(f)(1) (Independent Corroborating Proof)

If the alleged victim was below 18 when the crime happened, the prosecution can file the criminal charge after the SOL has elapsed if all the statements below are correct:

• The statute of limitations has elapsed.
• The crime involved substantial sexual conduct (contact between the victim’s and the accused person’s genitals, either via clothing or directly. It also includes penetration using a foreign object).
• Independent evidence supporting the victim’s account exists.

Penal Code Section 803(g) PC (The DNA Exception Rule)

PC 803(g) allows the prosecution to bring PC 289 charges if the collected DNA proof proves you are a suspect. The prosecution has a year to bring the sex crime charges against you.

This exemption applies for crimes committed after January 1, 2001, when DNA proof was gathered and reviewed within two (2) years of the crime.

If you are curious whether your case’s SOL has expired, your lawyer can help. They will evaluate your case details to address your concerns.

Contact an Experienced Sex Defense Attorney Near Me

Were you arrested for violating PC 289 in Palm Desert?

Whether the crime involves misunderstandings, false accusations, or something more complicated, you should take your charges seriously. A conviction carries severe penalties that can affect you for life. Desert Defense Lawyers can listen to you and create a strategy to defend you. We can also answer your questions and stand with you throughout the criminal judicial process.

Do not leave your life to chance. Call your office at 888-293-0396 to discuss your criminal case and how we can assist you in a confidential and free legal consultation.