Forcible Sexual Penetration with a Foreign Object - Penal Code 289 PC
We see a lot of these cases, having defended sex-related matters for the past 26 years. The foreign object can be many things.
Typically, it's going to be somebody's finger, somebody's hand touching another person, usually while they're sleeping. This sex crime is defined under California Penal Code 289.
I see a lot of these when people are intoxicated, they get together, and all of a sudden something happens. The woman wakes up the next morning, either figures out that something happens or has a discussion about something has happened.
She may not really know whether something happened, has pain in their vagina or anus, the next thing you know, you're being accused of unlawful touching, unlawful penetration with a foreign object.
Evaluating Whether the Sexual Activity Was Consensual
Then the question becomes, what makes it unlawful? If you're together with the person and you become amorous together and you touch the person — my clients are usually asking, what did I do wrong?
I thought I was permitted to do this. I thought that the woman wanted me to do this, and then they realize that the woman is claiming that whatever happened was not lawful, was not consensual. They didn't agree to is.
Then you get into the argument about, we were kissing just before this happened. How could it be unlawful? How could the woman not want it to happen?
So, we have to be able to make the argument that the woman consented to it, agreed to it, and therefore, you're not doing anything unlawful. You're not doing anything that wasn't agreed to or wasn't consensual.
Proving Sex Act was Lawful
So, if you or a loved one is charged with penetration by a foreign object, and usually they're going to have to put that unlawful part behind it. Because you could have lawful penetration with a foreign object if the person agrees to it or consents.
Then we get down to that argument where one side says, well not, I didn't agree to it and the other side says, yes you did agree to it. What the prosecutors will do is see if the woman went to a hospital, had a nurse check her.
They want tp see what the medical report says about whether they could give the opinion that in looking at their vagina, their anus, they were penetrated in an unlawful manner.
Meaning, there's some sort of injury there that usually wouldn't be there if it was consensual. So, that's one of the big things the police use when they're trying to figure these cases out. They ‘re going to try to use medical evidence if they can.
Pretext Phone Call
The next thing they do is they'll try to do what's called a pretext phone call. This means that they're going to have the alleged victim call the alleged person who is the suspect in the case and have them challenge them about what happened.
Asking why did you do that? You knew I didn't want that to happen. Then depending on what the person answers, how they deal with that inquiry, that can be used against them as well.
If you're saying, you're sorry versus say, what are you talking about? I would never do anything. You agreed to that. Then, you've got yourself a problem.
That's another weapon they use to prosecute people for unlawful penetration with a foreign object.
If you need help, pick up the phone. Ask to speak to Ron Hedding. I'll put my 26 years of criminal defense to work for you.