Penal Code 286(i) PC - Sodomy of an Intoxicated Person
California Penal Code 286(i) PC makes sodomy with an intoxicated person (sodomy by intoxicant) a felony crime. A conviction carries up to eight years in state prison.
Sodomy, known as anal intercourse or anal sex, is any penetration, no matter how slight, of the anus of one person by the penis of another person. Ejaculation is not required to be charged and convicted.
PC 286(i) says, "Any person who commits an act of sodomy, where the victim is prevented from resisting by an 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 three, six, or eight years."
To convict you, the district attorney must prove beyond a reasonable doubt all the elements of the crime.
They must prove you committed an act of sodomy while the effect of an intoxicating substance prevented the victim from resisting, and you knew, or reasonably should have known, that the effect of the intoxicating substance prevented them from resisting.
Notably, someone is "prevented from resisting" if they are so intoxicated that they cannot give legal consent to have sex. To give legal consent, a person must be able to exercise reasonable judgment.
Simply put, they must be able to understand and weigh the physical nature of the act, its moral character, and probable consequences.
Legal consent is the consent given freely and voluntarily exercising judgment by somebody who knows the nature of the act. Someone who is intoxicated can legally consent to sodomy, but the level of intoxication is the primary issue in PC 288(i) cases.
Sodomy is not illegal in California, but rather only when it occurs without consent or with a minor under 18 who does not have the legal capacity to consent to sex.
What are Related Crimes?
Several California laws are related to Penal Code 286(i) sodomy of an intoxicated person, such as the following:
- Penal Code 286(b)(1) PC sodomy against a minor under 18. This wobbler can be filed as a misdemeanor or felony for up to three years in prison.
- Penal Code 286(b)(2) PC sodomy against a minor under 16. This is a felony crime that carries up to three years in state prison.
- Penal Code 286(c)(1) PC sodomy against a minor under 14. This felony offense carries up to eight years in state prison if convicted.
- Penal Code 286(c)(2)(B) PC sodomy by force or fear against a minor under 14. A conviction for this felony carries up to 13 years in prison.
- Penal Code 286(c)(2)(C) PC sodomy by force or fear against a minor over 13. A felony that carries up to 11 years in prison if convicted.
- Penal Code 286(c)(2)(A) PC sodomy by force or fear. Violations of this law are also a felony, resulting in eight years in state prison.
- Penal Code 286(f) PC sodomy of an unconscious victim. A conviction for this felony carries up to eight years in prison.
- Penal Code 664/286(i) attempted sodomy of an intoxicated person. You must make a substantial but ineffectual step towards the commission of the crime, along with the specific intent to commit the crime." It means to try but fail to commit sodomy with an intoxicated person.
What are the PC 286(i) Punishments?
If convicted of sodomy of an intoxicated person, you will face the following penalties, based on the circumstances of the case:
- Three, six, or eight years in state prison rather than a local county jail. The sentence cannot be suspended or split, where you can serve part of the time on work release.
- Good behavior time while in prison can reduce the sentence by one-half.
- A probation-only sentence is not an option.
- Registration as a sex offender defined under Penal Code 290 PC.
- Failure to register can be charged as a separate crime (PC 290(b)). California has a three-tier sex registration system.
- Sodomy with an intoxicated person is not a "strike" offense defined under Penal Code 1192.7 and 667.5 PC serious and violent felonies. Still, if you have two strike convictions before the PC 286(i) conviction, you could get a third strike and a life-in-prison sentence.
- A felony conviction will result in loss of firearm rights.
- This crime involves moral turpitude, deceit, fraud, or other morally wrong conduct. It could have negative immigration consequences for non-citizens or result in the revocation of a professional license.
- Other possible punishments include fines ($70), victim restitution, criminal protective order, and a civil lawsuit for damages.
What are the PC 286(i) Defenses?
A California sex crime defense lawyer can use different strategies against charges of sodomy of an intoxicated person, as discussed below.
Perhaps we can argue that you reasonably believed the other person was capable of consenting to sodomy, even if that belief was wrong. You are not guilty of sodomy of an intoxicated woman if you actually and reasonably believed they were capable of consenting to the act.
The district attorney has the burden of proving beyond a reasonable doubt that you did not reasonably believe the other person could consent. If the prosecutor cannot meet this burden, you are not guilty.
Perhaps we can argue there is insufficient evidence to prove sodomy occurred or that the alleged victim was too intoxicated to resist or grant consent reasonably. Possibly, there is no evidence, such as seminal fluid evidence, DNA, confession, etc.
Perhaps the district attorney never presents evidence that the alleged victim communicated a lack of desire to engage in sodomy.
Perhaps we can impeach the statements of the alleged victim, who claimed they were too intoxicated to resist or grant consent. Maybe we can argue that a severely intoxicated victim misidentified you.
Perhaps we can argue that you relied on the alleged victim's implied consent actions that demonstrated consent to engage in sodomy.
Other possible defenses include illegal search and seizure, Miranda rights violation, coerced confession, alibi defense, and the statute of limitations. Contact us for more information. The Hedding Law Firm has offices in Los Angeles, CA.
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