Forcible Sexual Penetration by Foreign Object - Penal Code 289 PC
In California, many people are prosecuted for the crime of sexual penetration by foreign object, which can be accomplished by force, fear or some sort of threats by the perpetrator. This section is typically prosecuted under Penal Code Section 289 PC.
When you're looking at why there is this particular charge for penetration by foreign object, basically it's trying to cover a situation where somebody in a sexual situation touches another person in their private area and penetrates them even if it was very slightly with either their finger or some sort of foreign object.
If the person does it with their penis, that would not obviously be sexual penetration by foreign object because they would charge that as a rape case if it was done by force or fear or any type of threats.
So, in addition to someone's finger, there could be another object used that could accomplish this crime. So, any object that's used other than somebody's penis against somebody's will to penetrate them, even if it's slight, that can be charged under this Penal Code Section 289.
So, whenever I see sex cases, even if there was sex had and also there was some sort of touching, they will charge both rape and they will also charge this Penal Code Section 289, which a person could be facing up to eight years in prison for a violation of that particular Code Section.
So, if you're charged with this Code Section, obviously you want to get into an attorney right away and get a game plan together on how you're going to defend yourself.
Defenses for Penetration by Foreign Object Charges
One defense is consent. If the other party consented and they are not a minor, then that could be complete defense to this particular crime. If a person's a minor, they cannot consent to a violation of Penal Code 289 because in California you have to be at least eighteen in order to consent to such an act.
If on the other hand, the other party consents, then any type of penetration like this with a foreign object would not be a crime under this statute.
Another defense would be mistaken identity. If one person thinks one person did something and they really didn't do it – they got the wrong person – there's no evidence – no eye witnesses – no direct evidence – then they wouldn't be able to prove the case against the person.
Another area that I see that can be a defense is when somebody is trying to argue that they didn't consent, but when in reality, based on the circumstances surrounding the touching, they did in fact consent.
If somebody goes out on a date for example and the other party starts to kiss them and begins to touch them and there's some sort of sexual contact, and then later the person wakes up and decides that they've been penetrated in an unlawful manner, obviously those circumstances could certainly be argued as a defense.
Now the one area where I see problems with the defense is if two parties get drunk, one party is knocked unconscious by either alcohol, drugs or a combination of both, and then the other party that's okay takes advantage of that person and touches them in some way, then that would certainly be a violation of Penal Code Section 289 and the person could be charged with sexual penetration by foreign object in any of the Los Angeles courts.
So, really these defenses are centered around the facts and whether it's reasonable under the circumstances that you did whatever you did versus what the other side is indicating occurred.
What are the Penalties for Penal Code 289 PC?
Well, you could get up to eight years in prison just for touching somebody once in an unlawful manner with either your fingers or some sort of an object against that person's will, or you could be charged with it even if the person consented, but they're under the age of eighteen in California.
Another problem of being convicted of this particular Code Section is that it's a strike – you'd have a strike on your record for the rest of your life in California. In addition, you have to register as a sex offender for the rest of your life if you get convicted of Penal Code Section 289.
So, with all of these serious ramifications on the line, obviously you want to get attorney that's handled these types of cases before, had success and knows exactly what to do in order to defend you, investigate the case, and if necessary, to negotiate the case with the prosecutors and the judge. Contact us at (213) 542-0979.