Arrested or Charged with Sexual Penetration with a Foreign Object (Penal Code § 289) in California?

If you or someone you know has been arrested or charged with sexual penetration with a foreign object under California Penal Code § 289, it’s crucial to understand the nature of this offense, its potential consequences, and your legal options.

At David P. Shapiro Criminal Defense Attorneys, we defend individuals facing serious criminal charges, including those related to sexual offenses. Our experienced attorneys are here to guide you through this challenging time and protect your rights.

Sexual Penetration with Foreign Object Charges in California

California Penal Code § 289 defines and penalizes various forms of sexual penetration with a foreign object. This law covers a wide range of acts that don’t fall under other sexual assault statutes, like rape or sodomy.

It’s important to note that while consensual sexual acts between adults are legal, there are several circumstances under which sexual penetration with a foreign object becomes a criminal offense.

Definition of Sexual Penetration with a Foreign Object

According to Penal Code § 289(k)(1):

“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.”

The law further clarifies in § 289(k)(2) and (3):

“Foreign object, substance, instrument, or device shall include any part of the body, except a sexual organ.”

“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.”

This broad definition covers a wide range of potential acts and objects, making it a complex area of law.

When Sexual Penetration with a Foreign Object Becomes a Crime

Sexual penetration with a foreign object becomes a criminal offense under various circumstances outlined in the statute. These include:

1. Penetration against the victim’s will
2. Penetration of a victim incapable of giving consent
3. Penetration of an unconscious person
4. Penetration by use of intoxicating substances
5. Penetration by fraud
6. Penetration by threat of authority
7. Penetration involving minors

Let’s examine each of these in more detail to build a comprehensive understanding of this offense.

1. Penetration Against the Victim’s Will

Under § 289(a)(1)(A), it’s a felony to commit an act of sexual penetration against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury. This offense is punishable by 3, 6, or 8 years in state prison.

The law provides enhanced penalties when the victim is a minor:

• If the victim is under 14 years old (§ 289(a)(1)(B)): 8, 10, or 12 years in state prison
• If the victim is 14 years or older (§ 289(a)(1)(C)): 6, 8, or 10 years in state prison

2. Penetration of a Victim Incapable of Giving Consent

Section 289(b) criminalizes sexual penetration when the victim is incapable of giving legal consent due to a mental disorder or developmental or physical disability. This offense is punishable by 3, 6, or 8 years in state prison.

It’s important to note that the prosecution must prove that the defendant knew or reasonably should have known about the victim’s incapacity.

3. Penetration of an Unconscious Person

Under § 289(d), it’s a felony to commit an act of sexual penetration when the victim is unconscious of the nature of the act. This includes situations where the victim is:

1. Unconscious or asleep
2. Unaware that the act is occurring
3. Unaware of the essential characteristics of the act due to the perpetrator’s fraud
4. Unaware due to the perpetrator’s fraudulent representation that the act served a professional purpose

This offense is punishable by 3, 6, or 8 years in state prison.

4. Penetration by Use of Intoxicating Substances

Section 289(e) makes it a felony to commit an act of sexual penetration when the victim is prevented from resisting due to any intoxicating, anesthetic, or controlled substance. This offense carries a sentence of 3, 6, or 8 years in state prison.

5. Penetration by Fraud

Under § 289(f), it’s a felony to commit an act of sexual penetration when the victim submits under the belief that the perpetrator is someone known to them, induced by artifice, pretense, or concealment. This offense is punishable by 3, 6, or 8 years in state prison.

6. Penetration by Threat of Authority

Section 289(g) criminalizes sexual penetration 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. This offense carries a sentence of 3, 6, or 8 years in state prison.

7. Penetration Involving Minors

The law provides specific provisions for cases involving minors:

• If the victim is under 18 (§ 289(h)): This is a “wobbler” offense that can be charged as either a misdemeanor or a felony.
• If the perpetrator is over 21 and the victim is under 16 (§ 289(i)): This is always charged as a felony.
• If the victim is under 14 and more than 10 years younger than the perpetrator (§ 289(j)): This is a felony punishable by 3, 6, or 8 years in state prison.

Penalties for Sexual Penetration with a Foreign Object

As we’ve seen, the penalties for sexual penetration with a foreign object can vary widely depending on the specific circumstances of the case. They can range from misdemeanor charges with up to one year in county jail to felony charges with substantial state prison sentences.

In addition to imprisonment, convictions can also result in:

• Fines of up to $10,000
• Mandatory sex offender registration
• Probation or parole
• Court-mandated counseling or treatment programs

It’s important to note that many of these offenses are considered “strikes” under California’s Three Strikes law, which can lead to enhanced sentences for repeat offenders.

Sex Offender Registration

One of the most significant long-term consequences of a conviction for sexual penetration with a foreign object is the requirement to register as a sex offender. This is typically a lifetime requirement in California for those convicted of felony offenses under § 289.

Being on the sex offender registry can severely impact a person’s life, affecting:

• Housing options
• Employment opportunities
• Personal relationships
• Travel restrictions
• Community stigma

The sex offender registration requirement can thus have far-reaching effects on an individual’s life long after they’ve served their sentence.

Defenses to Sexual Penetration with Foreign Object Charges

While charges under § 289 are serious, there are several potential defenses that an experienced attorney can explore:

1. Consent

For adult victims, consent is a valid defense to most charges under this statute. However, it’s important to note that minors, unconscious individuals, and those with certain mental disabilities cannot legally consent.

2. Lack of Knowledge

In cases involving incapacitated victims, the defendant may argue that they reasonably believed the person was capable of consenting.

3. False Accusations

Unfortunately, false accusations of sexual offenses do occur. An experienced attorney can investigate the circumstances surrounding the accusation and potentially expose false claims.

4. Insufficient Evidence

The prosecution must prove all elements of the crime beyond a reasonable doubt. If there’s insufficient evidence to meet this high standard, the charges should not result in a conviction.

5. Violation of Constitutional Rights

If law enforcement violated the defendant’s constitutional rights during the investigation or arrest (such as conducting an illegal search), it may be possible to have certain evidence suppressed or even have the charges dismissed.

Hiring a San Diego Sex Crimes Attorney

If you’re arrested or charged with sexual penetration with a foreign object, it’s crucial to seek legal representation immediately. Here’s why:

1. Protection of Your Rights: An experienced attorney can ensure that your constitutional rights are protected throughout the legal process.
2. Case Evaluation: A skilled lawyer can thoroughly review the evidence against you and identify potential weaknesses in the prosecution’s case.
3. Development of Defense Strategy: Based on the specifics of your case, your attorney can develop a robust defense strategy tailored to your situation.
4. Negotiation with Prosecutors: In some cases, it may be possible to negotiate with prosecutors for reduced charges or penalties.
5. Trial Representation: If your case goes to trial, you need a vigorous defense to challenge the prosecution’s evidence and present your side of the story.

How David P. Shapiro Criminal Defense Attorneys Can Help

At David P. Shapiro Criminal Defense Attorneys, we understand the severity of charges under Penal Code § 289 and the impact they can have on your life. Our experienced team of criminal defense attorneys is committed to providing strategic defense for our clients. Here’s how we can assist you:

1. Immediate Action: We understand the urgency of your situation and can take immediate action to protect your rights.
2. Thorough Case Evaluation: We’ll conduct a comprehensive review of your case, examining all evidence and identifying potential weaknesses in the prosecution’s case.
3. Customized Defense Strategy: Based on the specifics of your case, we’ll develop a tailored defense strategy aimed at achieving the best possible outcome.
4. Skilled Negotiation: When appropriate, we’ll negotiate with prosecutors to potentially reduce charges or penalties.
5. Vigorous Trial Representation: If your case goes to trial, we’ll provide vigorous representation, challenging the prosecution’s evidence and presenting your defense.
6. Support Throughout the Process: We understand how stressful this situation can be. Our team will support you throughout the legal process, keeping you informed and advising you on the best course of action at every stage.

Protect Your Rights and Your Future

Being charged with sexual penetration with a foreign object in California is a grave situation that requires immediate action. However, an arrest or charge does not necessarily mean a conviction. With skilled legal representation, you can fight these charges and protect your rights and your future.

At David P. Shapiro Criminal Defense Attorneys, we have a deep understanding of California’s sex crime laws and extensive experience defending clients against serious criminal charges. We’re committed to providing our clients with the strongest possible defense, ensuring that their side of the story is heard and their rights are protected.

If you or someone you love is facing criminal charges in California, swift action is imperative. The penalties can be life-altering and long-lasting. Give us a call today to set up a case evaluation with one of our attorneys and learn how to best protect your freedom and future.

Too often, we see clients who “wait and see,” unsure of the legal landscape ahead, only for charges to escalate. They then find themselves backpedaling into a bad defense and an even worse lawyer. Don’t let that happen to you. Protect your freedom. Protect your future. Know your rights.

The contents of this article and blog are meant for informational and marketing purposes only and do not constitute legal advice. Viewing and/or use of the blog does not form an attorney-client relationship. No statements in this post are a guarantee, warranty, or prediction of a particular result in your case.