Forcible Sexual Penetration with a Foreign Object - Penal Code 289 PC
We see many 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 following day, either figuring out that something has happened or discussing something that has occurred.
She may not 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 become amorous and you touch the person — my clients are usually asking, what did I do wrong?
I thought I was permitted to do this. I felt that the woman wanted me to do this, and then they realized that the woman claimed that whatever happened was not lawful, was not consensual. They didn't agree to it.
Then you get into an argument; 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 argue 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 entity if the person agrees to it or consents.
Then we get down to that argument where one side says, well no, I didn't agree to it, and the other side says, yes, you did agree to it. The prosecutors will see if the woman went to a hospital and had a nurse check her.
They want to see what the medical report says about whether they could think that in looking at their vagina, their anus, they were penetrated unlawfully.
Meaning, there's some injury there that usually wouldn't be there if it was consensual. So, that's one of the big things the police use when 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 suspected person who is the suspect in the case and have them challenge them about what happened.
Were they 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 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.