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Penetration by Intoxicant

Penal Code 289(e) PC - Sexual Penetration of Intoxicated Person

California Penal Code 289(e) PC makes sexual penetration by a foreign object of an intoxicated victim a felony crime with harsh penalties, known as "sexual penetration by intoxicant."

PC 289(e) says, "Any person who commits an act of sexual penetration when the victim is prevented from resisting by any intoxicating or anesthetic substance or any controlled substance, and this condition was known, or reasonably should have been known by the accused, shall be punished by imprisonment in the state prison for a period of three, six, or eight years."

California Penal Code 289(e)  - Sexual Penetration of Intoxicated Person
PC 289(e) makes sexual penetration of an intoxicated person using a foreign object a felony crime.

A "victim" includes anyone who the defendant causes to penetrate the genital or anal opening of the defendant or another person or whose genital or anal opening is caused to be penetrated by the defendant or someone else and who otherwise qualifies as a victim under the requirements of law.

"Sexual penetration" is defined as the act of causing the penetration, however slight, of the genital or anal opening of someone or causing another person to penetrate the defendant's or another person's genital or anal opening for the purpose of sexual arousal, gratification, or sexual abuse by any foreign object, substance, instrument, or device, or by any unknown object.

Someone is "prevented from resisting" if they are so intoxicated that they cannot give legal consent. To give legal consent, a person must be able to exercise reasonable judgment.

Simply put, the person must be able to understand and weigh the physical nature of the act, its moral character, and probable consequences. Legal consent is consent given freely and voluntarily by someone who knows the nature of the act. A foreign object, substance, instrument, or device includes any part of the body except a sexual organ.

An unknown object includes any foreign object, 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.

What are Related Crimes?

Several California crimes are related to Penal Code 289(e) sexual penetration by a foreign object of an intoxicated victim, such as the following:

  • Penal Code 289 PC - Forcible sexual penetration with a foreign object. This law makes it a felony crime to penetrate someone's vagina or anus with a foreign object by use of force or threats against their will. A conviction carries a fine of up to $10,000 and three, six, or eight years in state prison.
  • Penal Code 286 PC - Sodomy. This is defined as any nonconsensual contact between the penis of one person and the anus of another, commonly called "anal sex or anal intercourse." Any penetration, even slight, is considered an act of sodomy, and ejaculation is not required.
  • Penal Code 261 PC - Rape. This is nonconsensual sexual intercourse accomplished by means of threats, force, or fraud. The felony penalties include three, six, or eight years in state prison and sex offender registration.
  • Penal Code 287 PC - Oral copulation. This law is defined as any contact between someone's mouth with the penis, vagina, or anus of another person. It can be charged when oral copulation with someone is accomplished using force, violence, duress, menace, or fear.
  • Penal Code 243.4 PC - Sexual battery. This is unwanted touching of someone's intimate parts without their consent for purposes of sexual gratification, arousal, or abuse. This wobbler can be charged as a misdemeanor or a felony, which carries up to four years in state prison if convicted.
  • Penal Code 261.5 PC - Statutory rape. This is engaging in sexual intercourse with someone under the age of 18 who is not your spouse. It does not matter if the act was consensual because minors are incapable of consenting to sexual activity.

What are the PC 289(e) Penalties?

The penalties for sexual penetration upon an intoxicated victim will often vary based on whether there are mitigating or aggravating factors in the case, such as the following:

  • Defendant's criminal history,
  • The level of sophistication to commit the crime,
  • How the victim became intoxicated,
  • The victim's level of intoxication,
  • Any harm caused to the intoxicated victim.

A defendant who is convicted of sexual penetration upon an intoxicated victim will face the following punishments:

  • Three, six, or eight years in state prison. Whether a judge will impose a "low-term" mitigated sentence of three years, a "mid-term" presumptive sentence of six years, or a "high-term" aggravated prison sentence of eight years will always depend on any mitigating or aggravating circumstances.
  • Violations of PC 289(e) are prison presumptive, meaning the defendant cannot serve any portion of their incarceration in county jail. The sentence cannot be served on house arrest or work release, but good conduct credits can reduce the sentence for good behavior while incarcerated.
  • Sex offender registration, defined by Penal Code 290 PC, is required under California's three-tier system. The length of sex offender registration could be 20 years (tier two) or a lifetime (tier three) based on several factors.
  • Since sexual penetration by a foreign object on an intoxicated person is a crime involving moral turpitude, it could have negative immigration consequences for non-citizens or result in a professional license suspension or revocation, such as doctors, lawyers, etc.
  • Other penalties include court fines, loss of the right to own or possess a firearm, protective order for no contact with the victim, and possible civil lawsuit for damages.

What are the PC 289(e) Defenses?

Our California sex crime lawyers can use common defenses related to the sexual penetration of an intoxicated victim by a foreign object, including the following:

  • Mistake of fact,
  • Alleged victim consented.
  • Both parties were highly intoxicated.
  • False allegations.
  • Negotiation with the district attorney.
  • Statute of limitations.
  • Illegal search and seizure of DNA evidence.
  • Coerced confession.

Perhaps we can argue there was a reasonable mistake of fact as to the victim's intoxication, or they were too intoxicated to identify the defendant as the suspect accurately.

Perhaps we can use an intoxication defense where both the defendant and the victim were severely intoxicated at the time of the alleged sexual penetration, which is not uncommon in these types of sex cases.

A crucial element in PC 289(e) cases is that the alleged victim was too intoxicated to resist sexual penetration because they were not aware of the circumstances of the alleged act, not that sexual penetration was physically forced on them.

Therefore, perhaps we can show that the alleged victim was not intoxicated to the level required under the law, and they demonstrated consent to vaginal sexual intercourse or anal sex. If successful, the defendant could be acquitted of the charges. Contact the Hedding Law Firm in Los Angeles, CA, for more information.

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