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Penal Code 289 PC – Forcible Sexual Penetration with a Foreign Object

California Penal Code 289 PC is the statute making nonconsensual and forcible penetration of a victim with a foreign object a felony offense, which includes penetrating someone's vagina or anus with a foreign object by use of force or threats against their will.

Suppose the victim was unable to give sexual consent due to being unconscious, too intoxicated, having a mental illness or physical disability, or being a minor under the age of 18. In that case, you could face additional penalties if convicted. 

This crime is also known as “sexual penetration by force or fear” and is a form of rape. In other words, PC 289 cases typically involve someone placing an object into a victim's vagina or rectum (sodomy) against their will or when they are unable to consent. 

California Penal Code 289 PC – Forcible Sexual Penetration with a Foreign Object
PC 289 prohibits the nonconsensual forcible sexual penetration with any foreign object.

Penal Code 289 PC says, “(a)(1)(A) Any person who commits an act of sexual penetration when the act is accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for three, six, or eight years.

(B) Any person who commits an act of unlawful sexual penetration upon a child who is under 14 years of age shall be punished by imprisonment in the state prison for 8, 10, or 12 years.

(C) Any person who commits an act of unlawful sexual penetration upon a minor who is 14 years of age or older shall be punished by imprisonment in the state prison for 6, 8, or 10 years.”

(2) Any person who commits an act of sexual penetration when the act is accomplished against the victim's will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat, shall be punished by imprisonment in the state prison for three, six, or eight years.”

Notably, Penal Code 243.4 sexual battery and PC 289 foreign-object sexual assault can be filed together because sexual battery is a lesser-included offense. 

What is the Definition of Foreign Object Penetration?  

Under Penal Code 289 PC, forcible penetration with a foreign object says sexual penetration is an act causing the penetration of somebody'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.

To convict, prosecutors must prove all the elements of the crime beyond a reasonable doubt, including the following:

  • You committed an act of sexual penetration with someone,
  • It was accomplished using a foreign object, substance, instrument, device, or an unknown object,
  • The penetration was accomplished by means of force, violence, duress, menace, fear of immediate bodily injury, or future threats of harm.
  • The other person did not give you consent to penetrate. 

A “foreign object” can include any physical object or body part other than the penis or sexual organs, such as any instrument like a beer bottle or substance. It can also include someone's fingers, toes, or tongue. “Sexual abuse” means penetrating someone for the purpose of causing pain or injury. “Consent” to sexual penetration means to act voluntarily while understanding the nature of the act. 

Forcible Penetration without Force or Duress

You can also be convicted of Penal Code 289 forcible sexual penetration with a foreign object without the use of force or duress under the following circumstances:

  • An act of sexual penetration with a foreign object when someone is unable to resist because they have consumed alcohol, drugs, alcohol, or other intoxicating substances, and you knew or should have known they were unable to give sexual consent or understand the consequences.
  • An act of sexual penetration with somebody who has a physical disability or mental illness that prevents them from understanding the act's nature, and you knew or should have known their disability meant they did not have the ability to give sexual consent.
  • An act of sexual penetration with a foreign object when someone is unconscious and unable to resist or understand the nature of the act. This also includes when they are sleeping and unaware of the act.
  • The act of penetration was accomplished after you used deceit, fraud, trickery, lies, and withheld information from the victim. 

What is Forcible Penetration?

To be found guilty of PC 289 forcible sexual penetration with a foreign object, it must be proven that you accomplished the unlawful penetration in one of the following ways: 

  • Using enough force or violence to defeat the victim's will.
  • Any threat of immediate bodily injury to the victim.
  • Any threats to retaliate if the victim does not submit.
  • Using menace, which means a threat or act demonstrating an intent to injure the victim.
  • Using duress, which is a direct or implied threat of force, violence, or retaliation causing the victim to perform an act they would not ordinarily do.
  • Any threats of kidnapping, restraining, confining, or inflicting a bodily injury, pain, or death on the victim or another person. 

What Are Some Examples?

Some examples of Penal Code 289 PC forcible sexual penetration include the following: 

  • Physically forcing a foreign object into somebody's vagina or anus.
  • Coercing the victim to penetrate another person with a foreign object.
  • Makes threats of harm if they do not submit to sexual penetration.
  • Penetration by posing as a public official or making threats to arrest or deport them if they do not submit.
  • Sexual penetration of a victim who is unconscious or too intoxicated to give sexual consent.
  • Sexual penetration of a victim who is disabled or mentally incapable of understanding or giving consent.

What is the PC 289 Penalties?

It's a misdemeanor to participate in sexual penetration with someone under 18, even if there is consent. If they are under 16, it's a felony. A felony conviction for PC 289 forcible penetration with a foreign object includes a fine of up to $10,000 and three, six, or eight years in state prison.

Sometimes, the case can be filed as a misdemeanor that carries up to one year in county jail. You could face enhanced penalties under the following circumstances: 

  • If the victim is a minor who is 14 or older, the prison sentence will increase to six, eight, or ten years.
  • If the victim is a minor younger than 14, the prison sentence will increase to eight, ten, or 12 years. 

Do You Have to Register as a Sex Offender?

Suppose you are convicted of violating Penal Code 289 PC forcible sexual penetration with a foreign object. In that case, you will be required to register as a sex offender as defined under Penal Code 290 PC. 

The Sex Offender Registration Act requires offenders to register with the local police station where they live and renew registration within five working days of their birthday every time they move to a new address. You will be required to register as a tier one, two, or three based on the case details as follows: 

  • Tier one sex registration for at least ten years for misdemeanors and some felonies, but the judge is not required to order registration if the minor is at least 14 and you are within ten years of the victim's age.
  • Tier two sex registration for at least 20 years for felonies, when the act was accomplished against the victim's will by use of threats to retaliate in the future, or the victim was incapable of giving consent due to a mental disorder or physical disability.
  • Tier three registration for life if the sexual penetration was by force or duress, or the victim was under 14 and more than ten years younger than you, or they were too intoxicated or unconscious, making them unable to give consent.

What are Related Crimes?

Several California crimes are related to Penal Code 289 PC forcible penetration with a foreign object, such as the following:

  • Penal Code 261 PC - Rape is nonconsensual sexual intercourse accomplished by means of threats, force, or fraud. The felony penalties include three, six, or eight years in state prison.
  • Penal Code 287 PC - Oral copulation is defined as any contact between someone's mouth with the penis, vagina, or anus of another person. This law applies when oral copulation with someone is accomplished by means of force, violence, duress, menace, or fear.
  • Penal Code 243.4 PC - Sexual battery is the touching of someone's intimate parts without their consent for purposes of sexual gratification, arousal, or abuse. This wobbler can be charged as either a misdemeanor or a felony. A felony conviction carries up to four years in state prison. 
  • Penal Code 261.5 PC - Statutory rape is having sexual intercourse with someone under the age of 18 who is not your spouse. Consent from minors does not matter because they are legally incapable of consenting to sexual activity.

What Are the Defenses for PC 289? 

If you were accused of violating Penal Code 289 PC forcible penetration with a foreign object law, the crucial factor is the issue of consent unless it's minor.  Our California sex crime lawyers can use different strategies, as follows:

  • Alleged victim gave consent,
  • You had a reasonable belief there was consent,
  • The accusations are false,
  • Negotiation with the prosecutor.

Prosecutors must prove the victim did not or could not consent. Perhaps we can argue the alleged victim consented or you reasonably believed it was consensual.

A lack of consent can be difficult for a District Attorney to prove beyond a reasonable doubt since many cases consist of two different stories. Perhaps we can review text messages or emails to uncover favorable evidence to get the charges dismissed.

Perhaps we can argue that you actually and reasonably believed your sexual partner gave consent, which is a common defense strategy in forcible sexual penetration cases. If we can prove that any reasonable person would have believed there was consent, there is a good chance the case could be dropped.

Perhaps we can argue that you are the victim of false accusations. I have seen cases where someone will falsely accuse someone of forcible rape or sexual penetration due to anger, jealousy, or retaliation. Perhaps your accuser is a former wife or girlfriend. Perhaps you are in a child custody battle.

Negotiating with the prosecutor for reduced charges or a case dismissal might be possible. Perhaps we can persuade law enforcement and the prosecution not to file formal criminal charges, called a “DA reject.”  We offer a free case evaluation to review the case details and to discuss legal options. The Hedding Law is based in Los Angeles, CA. 

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