Most people understand that rape is an act of forcible sexual intercourse and consider it one of the worst crimes for which a person can be accused.
However, you could still be charged with a form of rape under California Penal Code Section 289 (PC 289) if an object other than the penis is used to accomplish an act of sexual penetration by force, or where the victim is unaware of what is happening or is unable to give legal consent.
How Can You Be Charged with Violating PC 289?
Sexual penetration means penetration, however slight, of the genital or anal opening of a person. Penal Code Section 289 applies if sexual penetration is accomplished by use of a foreign object, against the victim’s will and done so by means of:
Fear of immediate harm; or
Threat of future retaliation to the victim or another person.
You could be prosecuted for violating PC 289 whether you forcibly penetrate the victim, you force the victim to penetrate him/herself or you force the victim to penetrate you or another person.
Additionally, you could be charged with violating PC 289 if you accomplish the act of sexual penetration and the victim did not or could not resist because her or she was:
Sentencing and Punishment for a Conviction of Violating PC 289
Any forcible act of sexual penetration is a felony. In many cases, the felony is also considered a “strike” under California’s Three Strikes Laws, which means you would not be eligible for parole until you serve at least 85% of your sentence.
If you are convicted of violating Penal Code Section 289, and your victim was an adult, in most cases you could be sentenced to serve up to eight years in prison.
An exception applies if both you and the victim are confined to a hospital for treatment of a mental disorder, and the victim has a mental disorder or developmental disability rendering him or her unable to legally consent to the act. In this case, the offense is known as a “wobbler.” This means the prosecutor has the option of charging you with either a misdemeanor – carrying up to one year in jail – or a felony – carrying up to three years in prison (PC 289 (c)).
A conviction for forcible penetration with a minor under PC 289 is a felony strike and is punishable according to the age of the victim as follows:
Victim under age 14: up to 12 years in prison (PC 289 (a)(1)(B));
Victim 14 to 17 years old: up to 10 years in prison (PC 289 (a)(1)(C)).
Because California law provides that minors can never legally consent to sexual activity, voluntary participation in sexual penetration using a foreign object involving any person under the age of 18 is a crime and is punishable as follows:
Victim under 18 – may be charged as a “wobbler.” You face up to one year in jail for a misdemeanor conviction and up to three years in prison for a felony (PC 289 (h));
Victim under age 16 with another participant 21 years of age or older – is a felony carrying a prison sentence of up to three years upon a conviction (PC 289 (i));
Victim under age 14 who is at least 10 years younger than another participant – is a felony strike, carrying a sentence of up to eight years (PC 289 (j)).
Lifetime Sex Offender Registration (PC 289)
Any conviction pursuant to Penal Code Section 289 is subject to mandatory lifetime registration as a sex offender as long as you live, work or attend school in California.
However, in limited cases, your experienced criminal defense attorney may be able to persuade the judge not to impose mandatory sex offender registration pursuant to California’s Sex Offender Registration Act (Penal Code Section 290, et seq.) by filing what is known as a Picklesimer motion
If granted, a Picklesimer motion allows the judge to use his or her discretion as to whether or not sex offender registration should be imposed.
Upon your release from custody for a PC 289 conviction, you may be required to serve a period of intensive community supervision (probation or parole) of at least three and up to 10 years which may include any of the following as conditions of your release:
A requirement that you wear a GPS tracking device on your ankle;
Restrictions on where you may live and work;
Mandatory completion of a sex offender treatment program;
A nightly curfew; and
Prohibited contact with certain other people, including:
Your victim(s), and
Children under the age of 18.
You may also face:
- Disciplinary action resulting in the suspension or revocation of any professional state license you may hold (attorney, contractor, doctor, stockbroker, teacher, etc.);
- A fine of up to $10,000 and other court-imposed fees;
- Victim restitution payments;
- Difficulty finding or maintaining employment and housing;
- Community laws prohibiting you from public places; and
- Deportation or removal from the United States if you are a legal immigrant or illegal alien.
Our Attorneys at Wallin & Klarich Can Help You Fight Forcible Penetration Charges
If you or someone you love has been charged with unlawful sexual penetration pursuant to Penal Code Section 289, it is important that you speak to an experienced sex crimes attorney at Wallin & Klarich today. Our attorneys at Wallin & Klarich have over 30 years of experience successfully defending thousands of clients charged with sex offenses such as forcible sexual penetration using a foreign object.
With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, our attorneys at Wallin & Klarich are available 24 hours a day, 7 days a week to help you during this difficult and stressful period in your life. We can help you to get the best result possible in your case.
Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free telephone consultation. We will get through this together.