Arrested or Charged with Sodomy (Penal Code 286) in California?

If you or someone you know has been arrested or charged with sodomy under California Penal Code 286, 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 sodomy. Our experienced attorneys are here to guide you through this challenging time and protect your rights.

Sodomy Charges in California

California Penal Code § 286 defines and penalizes various forms of sodomy offenses. It’s important to note that while consensual sodomy between adults is legal in California, there are several circumstances under which it becomes a criminal offense.

Definition of Sodomy

According to Penal Code § 286(a):

“Sodomy is sexual conduct consisting 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.”

This definition is gender-neutral and applies regardless of the sex of the individuals involved.

When Sodomy Becomes a Crime

Sodomy becomes a criminal offense under various circumstances outlined in the statute. These include:

1. Sodomy with a minor
2. Sodomy by force or fear
3. Sodomy with an unconscious person
4. Sodomy with a person incapable of giving consent due to a mental disorder or developmental disability
5. Sodomy in detention facilities
6. Sodomy by fraud or deception
7. Sodomy by threat of authority

Let’s examine each of these in more detail to build a comprehensive understanding of sodomy offenses in California.

Types of Sodomy Offenses

1. Sodomy with a Minor

The law treats sodomy with a minor differently depending on the ages of the individuals involved:

• If the victim is under 18 (§ 286(b)(1)): This is generally charged as a misdemeanor but can be charged as a felony in some cases.
• If the perpetrator is over 21 and the victim is under 16 (§ 286(b)(2)): This is always charged as a felony and punishable by 16 months, 2, or 3 years in state prison.
• If the victim is under 14 and more than 10 years younger than the perpetrator (§ 286(c)(1)): This is a felony punishable by 3, 6, or 8 years in state prison.

The rationale behind these age-based distinctions is to provide greater protection for younger minors who are considered more vulnerable and less capable of giving meaningful consent.

2. Sodomy by Force or Fear

Forced sodomy is a serious felony offense. The law distinguishes between different scenarios:

• General forced sodomy (§ 286(c)(2)(A)): Punishable by 3, 6, or 8 years in state prison.
• Forced sodomy with a victim under 14 (§ 286(c)(2)(B)): Punishable by 9, 11, or 13 years in state prison.
• Forced sodomy with a minor 14 or older (§ 286(c)(2)(C)): Punishable by 7, 9, or 11 years in state prison.

These enhanced penalties for forced sodomy involving minors reflect the law’s recognition of the particularly traumatic nature of such offenses against young victims.

3. Sodomy with an Unconscious Person

Under § 286(f), it’s a felony to engage in sodomy with someone who 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. The law recognizes that an unconscious person cannot give consent, making such acts a violation of the victim’s bodily autonomy.

4. Sodomy with a Person Incapable of Consent

It’s a felony to engage in sodomy with someone who is incapable of giving legal consent due to a mental disorder or developmental or physical disability (§ 286(g)). This offense is punishable by 3, 6, or 8 years in state prison.

The law aims to protect individuals who, due to their mental or physical condition, are unable to give meaningful consent to sexual acts. It’s worth noting that the prosecution must prove that the defendant knew or reasonably should have known about the victim’s incapacity.

5. Sodomy in Detention Facilities

Under § 286(e), it’s illegal for anyone confined in a state prison or local detention facility to engage in sodomy. This can be charged as either a misdemeanor or a felony.

This provision reflects concerns about the potential for coercion and the difficulty of establishing true consent in the confined environment of a detention facility.

6. Sodomy by Fraud or Deception

It’s a felony to engage in sodomy by tricking the victim into believing the perpetrator is someone else (§ 286(j)). This offense is punishable by 3, 6, or 8 years in state prison.

This provision addresses situations where consent is obtained through deception, recognizing that such consent is not truly informed and, therefore, invalid.

7. Sodomy by Threat of Authority

Under § 286(k), it’s a felony to accomplish sodomy by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim. This offense is punishable by 3, 6, or 8 years in state prison.

This provision recognizes the potential for abuse of power and the coercive nature of threats from those in positions of authority.

Penalties for Sodomy Offenses

As we’ve seen, the penalties for sodomy offenses 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 sodomy offenses are considered “strikes” under California’s Three Strikes law, which can lead to enhanced sentences for repeat offenders or those with prior strikes.

Sex Offender Registration

One of the most significant long-term consequences of a sodomy conviction is the requirement to register as a sex offender. This is typically a lifetime requirement in California for those convicted of felony sodomy offenses.

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

• Housing options: Many landlords refuse to rent to registered sex offenders
• Employment opportunities: Many employers conduct background checks
• Personal relationships: The stigma of being a registered sex offender can strain personal and family relationships
• Travel restrictions: Some jurisdictions have residency restrictions for sex offenders
• Community stigma: Registered sex offenders often face social ostracism

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 Sodomy Charges

While sodomy charges 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 sodomy charges. 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 minors or individuals incapable of consent, the defendant may argue that they reasonably believed the person was of legal age or 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 a sodomy offense, talk to an experienced sex crimes attorney right away. 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.

Frequently Asked Questions about Sodomy Charges in California

To help you better understand sodomy charges in California, here are answers to some frequently asked questions:

Can I be charged with sodomy if the act was consensual?

Generally, consensual sodomy between adults is legal in California. However, consent is not a defense if the victim is a minor, unconscious, or incapable of giving legal consent due to a mental disorder or disability.

What if I didn’t know the person was underage?

Mistake of age can be a defense in some cases, but it’s not always successful. The court and/or jury will consider whether your belief was reasonable under the circumstances.

Is sodomy always a felony in California?

No, not all sodomy offenses are felonies. Some can be charged as misdemeanors, particularly those involving consensual acts with older minors.

Will I have to register as a sex offender if convicted?

Most felony convictions for sodomy require sex offender registration. Some misdemeanor convictions may also require registration, depending on the circumstances.

Can sodomy charges be expunged from my record?

In some cases, yes. However, many sex offenses, particularly those requiring sex offender registration, cannot be expunged in California.

How David P. Shapiro Criminal Defense Attorneys Can Help

At David P. Shapiro Criminal Defense Attorneys, we understand the severity of sodomy charges 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.

Conclusion: Protect Your Rights and Your Future

Being charged with sodomy 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.