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Penal Code 286 PC - Sodomy Laws in California

California Penal Code 286 PC makes sodomy a crime when it involves a minor under the age of 18 or when it's accomplished by using force, violence, or fear.

The act of sodomy is also a crime when it's performed on someone who is not able to consent due to intoxication, a mental disorder, physical disability, or unconsciousness and when performed on a fellow jail inmate.

Penal Code 286 PC - Sodomy Laws in California
PC 286 makes sodomy a crime in certain situations, such as with a minor under 18.

“Sodomy” is defined as any 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. 

Sodomy does not include anal copulation between consenting adults, but the consent must be given voluntarily, and they must understand the nature of the act.

Simply put, sodomy is a sexual act involving any penetration involving the male penis of one individual and the anus of another person. The length of time of the anal penetration is irrelevant. Still, it's only illegal in certain situations, such as when an adult commits sodomy with a minor. 

Suppose a man performs anal sex on a woman after making threats when she declined to give consent. In that case, he could be charged with PC 286 sodomy even if she initially gave consent to sexual intercourse. The crime of sodomy is divided by statute depending on the victim's age and whether the conduct was consensual. 

When is Sodomy a Crime?

PC 286 says, “(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.”

Sodomy becomes a crime only in situations where certain relevant factors exist. Anyone consenting must do so voluntarily without coercion, but minors under 18 cannot give consent to any sexual activity. 

In other words, sodomy must be performed between consenting adults. PC 286 has numerous subsections defining when sodomy is a crime, including the following:

  • Penal Code 286(b)(1) - sodomy with someone under 18 years old,
  • Penal Code 286(b)(2) - any person over 21 years of age who participates in the act of sodomy with another person who is under 16 years of age,
  • Penal Code 286(c)(1) - Any person who participates in an act of sodomy with someone under 14 years and more than ten years younger,
  • Penal Code 286(c)(2)(A) - sodomy using force, violence, duress, menace, or fear against a victim's will,
  • Penal Code 286(c)(2)(B) - sodomy with somebody under 14 when done against their will using force, violence, coercion, or fear,
  • Penal Code 286(c)(3) - sodomy by threatening to retaliate in the future against the victim or another person,
  • Penal Code 286(d)(1) – acting in concert with someone to commit acts of sodomy using force or fear,
  • Penal Code 286(f) – sodomy performed on someone unable to give consent, such as being unconscious or incapacitated, including people with mental disorders or physical disabilities,
  • 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 is also illegal when the victim is forced to commit the act under duress after being threatened, intimidated, or physically assaulted by someone or when it's committed between fellow prison inmates.    

Sodomy is accomplished by force when someone uses enough physical force to overcome the person's will, and the act is accomplished by fear if the victim is actually and reasonably afraid.

What are the Penalties for Sodomy?

Most Penal Code 286 PC sodomy convictions are felonies, but some are wobblers that can be misdemeanors or felonies, depending on the case details and the defendant's criminal record. The legal penalties for sodomy include the following:

  • Sodomy against a minor is a wobbler. A misdemeanor carries up to one year in county jail, and a felony carries 16 months, two, or three years in state prison.
  • Sodomy by an adult over 21 against a minor under 16 is a felony that carries 16 months, two, or three years in state prison.
  • Sodomy against a minor under 14 is a felony that carries up to eight years in state prison.
  • Sodomy by force or fear of immediate and unlawful bodily injury is a felony that carries up to eight years in state prison.
  • Sodomy by force or fear against a minor under 14 is a felony that carries up to 13 years in prison.
  • Sodomy by force or fear against a minor over 13 is a felony that carries up to 11 years in prison.
  • Sodomy of an unconscious or intoxicated victim is a felony that carries three, six, or eight years in prison.
  • Sodomy involving fellow jail or prison inmates is a wobbler.
  • A sodomy conviction can also carry fines and victim restitution

Since sodomy is a crime involving moral turpitude, people holding a professional license may face discipline and license revocation. Non-citizens might face deportation or be denied entry into the United States.

A felony conviction can result in losing gun rights and would count as a “strike” under California's three strikes law because it's a serious and violent offense. A sodomy conviction will result in the requirement to register as a sex offender under Penal Code 290 PC. 

Probation is not available in sodomy cases. Most sodomy crimes require serving time in state prison rather than a county jail.

What About a Civil Lawsuit? 

Any person who believes they are a sex crime victim has the right to file a civil lawsuit to receive compensation for medical bills, counseling, pain and suffering, mental anguish, and lost work income.  In severe cases, punitive damages could be available.

A civil lawsuit could be pursued in cases where criminal charges were never filed. Civil lawsuits are separate from criminal charges, and a conviction is not required. However, a criminal conviction could be used to demonstrate civil liability if a civil lawsuit is filed for an allegation of sodomy.

What are Related Crimes? 

In California, there are several criminal charges related to the crime of sodomy, including the following:

  • Penal Code 243.4 PCsexual battery is the act of touching someone's intimate parts without consent for the purpose of sexual gratification, arousal, or abuse.
  • Penal Code 288 PClewd acts with a minor means to touch a child under 14 for sexual purposes or causing them to touch themselves or someone else for a sexual purpose. The penalties will depend on the age of the child, whether the lewd act was accomplished by force, violence, duress, or threats, and if there was a pattern of indecent acts.
  • Penal Code 288.5 PC - continuous sexual abuse of a child occurs when someone who lives with or has recurring access to a minor under 14, over three months or longer, commits three or more acts of substantial sexual contact or lewd acts. This felony carries six, 12, or 16 years in state prison.
  • Penal Code 261 PCrape is the use of force, threats, or fraud to have non-consensual sexual intercourse with another person. A conviction is a felony that carries up to eight years in prison and registration as a sex offender.
  • Penal Code 289 PCforeign object penetration is the nonconsensual and forcible penetration of a victim with a foreign object, including when the victim is too intoxicated to give consent.  A conviction is a felony punishable by up to 8 years in state prison.

What are the Defenses for PC 286?

If you were charged with Penal Code 286 PC, our California sex crime lawyers can use different strategies, such as the following:

  • Alleged victim gave consent,
  • False accusation,
  • Misidentification,
  • Reasonable belief the victim was an adult,
  • Police misconduct.

To be found guilty of the crime of sodomy, the prosecution must prove there was sexual penetration with a victim, which might be established by testimony or circumstantial evidence. The use of a condom or having a prior relationship with the victim is not a defense.

Consent means both people decided to engage in an act of sodomy of their own free will. The DA must prove beyond a reasonable doubt the alleged victim did not give consent, which could be problematic. 

Defenses for Sodomy Charges
Contact our law firm for a free case review.

Perhaps we can argue there was consent by reviewing text messages or emails. Perhaps we can impeach the alleged victims' testimony enough to convince the District Attorney to drop the charges.

Perhaps we can argue that someone falsely accused you out of anger, revenge, or jealousy after a bad relationship breakup. Maybe we can show the accuser had a motive to lie. Perhaps medical records show a lack of physical evidence of the anal area. 

Perhaps we could argue there was a mistake of age, or the victim lied about their age or appeared physically older. Maybe we can say you had a reasonable belief that the victim was an adult over the age of 18. Perhaps we can show pictures of the minor looking like an adult.

Perhaps somebody was unlawfully sodomized, but they mistakenly identified you. This could occur when the victim was intoxicated on drugs or alcohol, and their memory of what happened is not clear.

Perhaps we can negotiate with the prosecutor not to file formal criminal charges through a prefiling intervention called a “DA reject.” Contact our law firm for more information. The Hedding Law Firm is based in Los Angeles, CA.

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