California law is fairly complicated when it comes to rape. There are many different forms of rape, one of which is called forcible penetration with a foreign object.
Unlawful and forcible penetration with a foreign object pursuant to California Penal Code Section 289 means penetration of either the genital or anal opening of another person, accomplished involving something other than the penis (in most cases), and as follows:
- By force, fear or duress; or
- By threat of immediate or future retaliation to the victim or another person; or
- While the victim was unaware or otherwise unable to give legal consent; including
- A minor who voluntarily participated in the act.
What is Forcible Penetration with a Foreign Object? (PC 289)
In order for you to be found guilty of sexual penetration with a foreign object by force, fear or threats, the prosecution must prove all of the following elements beyond a reasonable doubt:
- You committed an act of sexual penetration with another person
- You did so for the purpose of either for sexual gratification or sexual abuse
- The penetration was accomplished by using a foreign object or an unknown object
- The alleged victim did not consent to the penetration
- You accomplished the act of penetration, even if the penetration was slight or for a very short duration
- You used force, fear or threats while penetrating (remember, penetration can be of any person, including the defendant, so long as the penetration is directed by the defendant)
Under PC 289, in order to consent to sexual penetration, a person must act freely and voluntarily and know the nature of the act. This means that an unconscious, sedated, sleeping or disabled person does not have the ability to give legal consent.
Why are Statutes of Limitation Important?
A statute of limitations defines the time limits within which the state must act to lawfully prosecute you for committing a crime.
It is important that you understand that the statute of limitations for sex crimes in California is generally broader than for most other crimes. This reflects the legislature’s intent to allow extended opportunity for a person who may have suppressed being victimized to come forward and report an incident of alleged sexual abuse.
In fact, certain exceptions to a statute of limitations make it possible for you to be charged with a sex offense decades after the crime allegedly occurred.
Statute of Limitations for Forcible Penetration with a Foreign Object (Penal Code Sections 801.1 and 802)
Three statutes of limitation apply to a charge of violating Penal Code Section 289 (PC 289). These include:
- A felony charge involving a victim under the age of 18 may be prosecuted any time prior to the victim’s 28th birthday (Penal Code Section 801.1(a));
- A felony charge involving an adult victim may be prosecuted within 10 years of the offense (Penal Code Section 801.1(b)); or
- A misdemeanor charge may be prosecuted within one year after commission of the offense (Penal Code Section 802(a)).
Exceptions to Statutes of Limitation
Penal Code Section 803 authorizes two exceptions to the statute of limitations in a prosecution for violating California’s laws prohibiting unlawful sexual penetration. These exceptions include:
1. Independent Corroborating Evidence (Penal Code 803 (f)(1))
A criminal complaint may be filed within one year of the date a person of any age makes a report to a California law enforcement agency alleging that, while a minor, he or she was the victim of being unlawfully sexually penetrated with a foreign object.
For this exception to apply, the following conditions must be met:
- The statute of limitations under Sections 800 through 801.1 have already expired;
- “Substantial sexual conduct” as defined in Penal Code Section 1203.066 (b) was involved (which includes sexual penetration);
- There is independent evidence other than the opinion of a mental health professional that corroborates the victim’s allegation;
- If the victim was 21 years of age or older at the time of the report, the independent evidence shall clearly and convincingly corroborate the victim’s allegation.
2. The DNA Exception Rule (Penal Code Section 803(g))
A criminal complaint alleging sexual penetration involving a foreign object may be filed within one year of the date on which the identity of the suspect is conclusively established by DNA evidence, under the following conditions:
- The offense was committed prior to January 1, 2001, and DNA evidence collected was analyzed no later than January 1, 2004, or
- The offense was committed on or after January 1, 2001, and DNA evidence collected was analyzed within two years of the offense.
If either exception described above applies, a violation of PC 289 may be prosecuted years, even decades after you allegedly committed the crime.
Sentencing and Punishment for Unlawful Forcible Penetration with a Foreign Object
A violation of PC 289 involving an adult could be charged if the victim was either forced, unaware or unable to give legal consent. This crime is almost always charged as a felony. If you are convicted of felony forcible penetration with a foreign object, you face as much as eight years in prison.
If you forcibly penetrate a minor victim or force a minor to sexually penetrate you, him/herself or another person, you face:
- Up to 10 years in prison if the alleged victim was 14-17 years old; or
- Up to 12 years in prison if the alleged victim was under 14 years old
If a minor under 18 willingly participated in the act, the crime can be charged as a misdemeanor carrying up to 364 days in jail. However, as the age difference between you and the minor participant increases, the crime can be elevated to a felony. A felony conviction is punishable by up to three years in prison.
If your act involved a child participated who is less than 14 years old and is at least 10 years younger than you, the offense is considered a violent felony and is punishable by up to eight years in prison.
Additionally, any forcible act of sexual penetration with a foreign object is considered a violent felony or “strike” according to California’s Three Strikes law. If you are convicted of a strike, you must serve a minimum of 85 percent of your prison sentence before you are eligible for parole, if you are sent to prison.
Lifetime Sex Offender Registration Applies
Any conviction of violating PC 289 subjects you to lifetime sex offender registration. This means that you will have to register as a sex offender for the rest of your life if you are convicted of forcible penetration with a foreign object under PC 289.
This is perhaps the worst consequence of a PC 289 conviction. Being a registered sex offender may make it difficult for you to find and maintain employment, obtain suitable housing and visit any location where children may be present. The negative stigma of being a sex offender could haunt you for the rest of your life. That is why you should speak to an experienced criminal defense lawyer about how to fight these charges.
Defenses to Sexual Penetration by Object by Force, Fear or Threats
Our experienced sex crime lawyers have been successfully defending clients facing serious sex crime charges for more than 35 years. We understand the valid legal defenses that may apply to your case. Some defenses that we have used to win PC 289 cases for our clients include:
Consent – Consent is a complete defense to the forcible penetration with a foreign object charges. To use this defense successfully, your attorney must show that you actually and reasonably believed that the alleged victim consented to the act of sexual penetration. It is important to note that consent is not a valid defense if the charge involves a minor because minors cannot legally give consent in California.
No Penetration – If you did not actually penetrate the alleged victim with a foreign object, your act does not satisfy all of the required elements of this crime and you cannot be convicted. Your lawyer may try to establish reasonable doubt that you actually performed of an act of penetration to help you fight PC 289 charges.
Wallin & Klarich is Ready to Fight Your Charges of Unlawful Sexual Penetration
If you or someone you care about has been arrested for forcible penetration with a foreign object pursuant to Penal Code Section 289, you should speak to an experienced sex crimes attorney at Wallin & Klarich as soon as possible. Our attorneys have more than 35 years of experience successfully defending our clients accused of forcible penetration with a foreign object.
In many cases, the statute of limitations for a criminal offense has long expired. Our attorneys at Wallin & Klarich will examine all of the evidence against you to determine whether the crime can be proven beyond a reasonable doubt and whether you can be legally prosecuted. If not, we will argue that the charges against you must be reduced or dismissed altogether.
With offices in Orange County, Riverside, San Bernardino, Victorville, West Covina, Torrance, Los Angeles and San Diego, you can trust our attorneys at Wallin & Klarich to provide you with the very best legal representation throughout your criminal proceedings. We can help you achieve the best possible outcome 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.