California Penal Code 286 – Sodomy – (PC 286)

PC § 286(a) defines sodomy as sexual contact between the penis of one individual and the anus of another individual. Any sexual penetration between the two, however slight, qualifies as sodomy. ¹ The penetration can still occur even if the victim is wearing clothing. ² Ejaculation is not necessary. ³ The person penetrated can be male or female.

Sodomy is only legal if it is a consensual act between adults. It is made a criminal act when it is perpetrated on a minor or against an adult’s will.

Prosecution for Sodomy with an Adult

Here are the different violations of law you could be charged with if you are accused of sodomy with an adult:

PC § 286(c)(2): Acts of sodomy accomplished against the victim’s will by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person. ⁴
The specific charge you face will depend on the circumstances of your alleged crime.
PC § 286(g): Acts of sodomy with a victim incapable of giving legal consent because of a mental disorder or developmental or physical disability, when the victim’s inability of giving legal consent was known or reasonably should been known to the person committing the act. ⁵
PC § 286(i): Acts of sodomy with a victim who is prevented from resisting by an intoxicating or anesthetic substance, or any controlled substance, when the condition was known or reasonably should have been known to the defendant. ⁶
PC § 286(j): Acts of sodomy with a victim who submits under the belief that the person committing the act is someone known to the victim other than the accused, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief. ⁷
PC § 286(k): Acts of sodomy when the act is accomplished against the victim’s will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, when the victim has a reasonable belief that the perpetrator is a public official. ⁸
PC § 286(f): Acts of sodomy with a victim who is not conscious of the nature of the act, when the fact of the victim’s unconsciousness is known to the perpetrator. ⁹ “Unconscious of the nature of the act” here means incapable of resisting because the victim:
- was unconscious or asleep;
- was not aware, knowing, perceiving, or cognizant that the act occurred;
- was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraud in fact; or
- was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraudulent representation that the sexual penetration served a professional purpose, when it served no professional purpose. ¹⁰ The last section is usually reserved for doctors and other health care professionals who have engaged in sodomy.

Sodomy is punishable by a greater penalty if the following is true:

PC § 286(d)(1): The perpetrator voluntarily acts in concert with another person, either personally or aiding and abetting the other person, and the act is accomplished against the victim’s will by means of force or fear or immediate and unlawful bodily injury on the victim or another person, or against the victim’s will by threatening to retaliate in the future against the victim or any other person, where there is a reasonable possibility that the perpetrator will execute the threat. Here the penalty is imprisonment in state prison for 5, 7, or 9 years. ¹¹

A person who engages in sodomy with any person of any age while confined in a state prison or local detention facility is punished by imprisonment in state prison, or county jail for up to one year under PC § 286(e). ¹² A person who engages in sodomy with a victim who is incapable of giving legal consent because of a mental disorder or developmental or physical disability, when the victim’s inability to give consent was known or reasonably should be known to the person committing the act, with both defendant and victim at the time being confined in a state hospital for persons with a mental health disability, or any other public or private facility for the care of persons with a mental health disability approved by a county mental health director, may serve time in state prison or county jail for up to one year. ¹³ PC § 286(h).

What the Prosecutor must Prove in Order to Convict You of Sodomy with an Adult

In a sodomy case, the prosecutor is required to prove that the defendant committed an act of sodomy upon another person; the other person did not consent to the act; and the defendant accomplished the act by one of the following:

force, duress, menace, or fear of immediate and unlawful bodily injury to another person;
threatening to retaliate against someone when there was a reasonable possibility that the defendant would carry out the threat; or
threatening to use the authority of a public office to incarcerate, arrest, or deport someone. ¹⁴

A threat to retaliate is defined as a threat to kidnap, unlawfully restrain or confine, or inflict extreme pain, serious bodily injury, or death. A public official is a person employed by a government agency who has authority to incarcerate, arrest, or deport. When the defendant pretends to be a public official, the other person must have reasonably believed the defendant was a public official, even if he or she was not. ¹⁵

Under PC § 286, sodomy is a general intent crime. The defendant must have meant to commit sodomy when he or she acted.

Defenses to a Sodomy with an Adult Charge

If you are charged with sodomy with an adult, a Wallin & Klarich attorney can present the following defenses in your case:

The alleged victim provided legal consent. In order to give legal consent, a person 18 years or older must act freely and voluntarily, and know the nature of the act. ¹⁶ If a person is under the age of 18, they can not legally provide consent. A person who
To beat a sodomy charge, you will need a solid defense.

gives legal consent must be able to exercise reasonable judgment. This means the person must be able to understand and weigh the physical nature of the act, its moral character, and probable consequences. ¹⁷ A defendant cannot be found guilty of forcible sodomy if he or she reasonably believed that the alleged victim consented to the act. ¹⁸
Defendant acted under duress. Duress is defined as an action that a defendant takes because he or she is threatened or menaced to the extent that he or she believed his or her, or someone else’s life, would be in immediate danger if he or she refused a demand or request to commit the crime. ¹⁹
The defendant was entrapped. In California, entrapment is defined as a situation when a law enforcement officer induces a “normally law-abiding person” to commit a crime that the defendant would otherwise not have committed. ²⁰
Penetration between a penis and an anus did not occur. The offender may be charged with another sex crime, but not sodomy.
False allegations. The alleged victim is either lying or mistaken as to his/her allegation of sodomy.
Mistaken identity. The alleged victim stated the defendant was to blame, but witnesses or physical evidence indicate another person committed the act.

Sentencing for a Sodomy with an Adult Conviction

Sodomy has different penalties depending on the circumstances of the case. In most cases, sodomy with an adult is a felony punishable by imprisonment in state prison for 3, 6, or 8 years.

Specifically, the punishments for a conviction of the following crimes relating to sodomy with an adult are as follows:

PC § 286(c)(2): imprisonment in the state prison for three, six, or eight years.
PC § 286(g): imprisonment in the state prison for three, six, or eight years.
PC § 286(i): imprisonment in the state prison for three, six, or eight years.
PC § 286(j): imprisonment in the state prison for three, six, or eight years.
PC § 286(k): imprisonment in the state prison for three, six, or eight years.
PC § 286(f): imprisonment in the state prison for three, six, or eight years.
PC § 286(d)(1): imprisonment in the state prison for five, seven, or nine years.

Prosecution for a Sodomy with a Minor Charge

Here are the different violations of law you could be charged with if you are accused of sodomy with a minor:

PC § 286(b)(1): Except as provided in Section 288, any person who participates in an act of sodomy with another person who is under 18 years of age shall be punished
Jail time will likely be part of the penalty for an unlawful sodomy conviction.

by imprisonment in the state prison or in a county jail for not more than one year. ²¹
PC § 286(b)(2): Except as provided in Section 288, any person over 21 years of
age who participates in an act of sodomy with another person who is under 16 years of age shall be guilty of a felony. ²²
PC § 286(c)(1): Any person who participates in an act of sodomy with another person who is under 14 years of age and more than 10 years younger than he or she shall be punished by imprisonment in the state prison for three, six, or eight years. ²³
PC § 286 (c) (2) (B): Any person who commits an act of sodomy with another person
who is under 14 years of age when the act is accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for 9, 11, or 13 years. ²⁴
PC § 286 (c) (2) (C): Any person who commits an act of sodomy with another person who is a minor 14 years of age or older when the act is accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for 7, 9, or 11 years. ²⁵
PC § 286(d) (2): Any person who, while voluntarily acting in concert with another person, either personally or aiding and abetting that other person, commits an act of sodomy upon a victim who is under 14 years of age, when the act is accomplished against the victim’s will by means of force or fear of immediate and unlawful bodily injury on the victim or another person, shall be punished by imprisonment in the state prison for 10, 12, or 14 years. ²⁶
PC § 286 (d)(3): Any person who, while voluntarily acting in concert with another person, either personally or aiding and abetting that other person, commits an act of sodomy upon a victim who is a minor 14 years of age or older, when the act is accomplished against the victim’s will by means of force or fear of immediate and unlawful bodily injury on the victim or another person, shall be punished by imprisonment in the state prison for 7, 9, or 11 years. ²⁷

Prosecution for a Sodomy with a Minor Charge

In a sodomy with a minor case, the prosecutor is required to prove that the defendant committed an act of sodomy upon a child under the age of 18.

Defenses to a Sodomy with a Minor Charge

If you are charged with sodomy with a minor, a Wallin & Klarich attorney can present the following defenses in your case:

Penetration between a penis and an anus did not occur. The offender may be charged with another sex crime, but not sodomy.
False allegations. The alleged victim is either lying or mistaken as to his/her allegation of sodomy.
Mistaken identity. The alleged victim stated the defendant was to blame, but witnesses or physical evidence indicate another person committed the act.
Age of Alleged Victim: The alleged victim is older than the age required to be convicted under the specific statute.

Sentencing for a Sodomy with a Minor Conviction

Sodomy with a minor has different penalties depending on the circumstances of the case. Specifically, the punishments for a conviction of the following crimes relating to sodomy with an adult are as follows:

PC § 286(b)(1): punished by imprisonment in the state prison, or in a county jail for not more than one year.
PC § 286(b)(2): punished by imprisonment in the state prison, or in a county jail for not more than one year.
PC § 286(c)(1): punished by imprisonment in the state prison for three, six, or eight years.
PC § 286(B): punished by imprisonment in the state prison for 9, 11, or 13 years.
PC § 286 (C): punished by imprisonment in the state prison for 7, 9, or 11 years.
PC § 286(2): punished by imprisonment in the state prison for 10, 12, or 14 years.
PC § 286(3): punished by imprisonment in the state prison for 7, 9, or 11 years.

FAQs

1. How is sodomy different than sexual assault?

Sodomy is a form of sexual assault defined as unconsented contact between the penis of a male individual and the anus of a male or female individual.

2. Was sodomy between consenting adults illegal in the past?

Yes. In the past, California criminalized sodomy even between consenting adults. The California Legislature repealed the law criminalizing all consensual sexual contact between adults in 1975. Further, in 2003, in Lawrence v. Texas, the U.S. Supreme Court ruled the systematic criminalization of sodomy to be unconstitutional. ²⁸

3. Can I be charged with sodomy of my domestic partner, spouse, former boyfriend or girlfriend, or former sexual partner?

Yes, if you forced yourself upon your domestic partner, spouse, former boyfriend or girlfriend, or former sexual partner, the fact that you are married, have domestic partner status, used to date, or used to sleep together does not shield you from being charged in a criminal case. Further, the fact that you are now a martial or domestic partner of the victim, or used to date that person, does not constitute consent. ²⁹

4. If the victim requested, suggested, or communicated that I wear a condom or use another birth control device, does this constitute consent?

No, such a statement by itself does not constitute consent. ³⁰

Such a statement coupled with other statements may constitute consent. You should speak with your attorney about what the other person said before, during, and after sexual contact.

5. Can an alleged adult victim withdraw consent?

Yes. If a victim initially consented but later objected at the time of intercourse attempting to stop the act, and the defendant forcibly continues despite this objection, the act can be considered forcible sodomy. ³¹

6. Can a minor legally consent to an act of sodomy?

No. A minor can never legally consent to any sex act with an adult.

Should I Hire an Attorney?

You should immediately contact an experienced criminal defense attorney from Wallin & Klarich if you have been charged with sodomy. Wallin & Klarich’s sex crime attorneys have been successfully representing clients in California criminal court for over 30 years. Our attorneys can help you achieve the best possible outcome in your case.

Our offices are located in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville.

Call our attorneys today at (877) 4-NO-JAIL (877-466-5245) for a free phone consultation. We will be there when you call.

^{1. [Calif. Penal Code § 286(a).]↩}
^{2. [People v. Ribera (2005) 133 Cal.App.4th 81, 85-86. ]↩}
^{3. [CALCRIM No. 1030.]↩}
^{4. [Calif. Penal Code § 286(c)(3).]↩}
^{5. [Calif. Penal Code § 286(g).]↩}
^{6. [Calif. Penal Code § 286(i).]↩}
^{7. [Calif. Penal Code § 286(j).]↩}
^{8. [Calif. Penal Code § 286(k).]↩}
^{9. [Calif. Penal Code § 286(f).]↩}
^{10. [Calif. Penal Code § 286(f)(1)-(4).]↩}
^{11. [Calif. Penal Code § 286(d)(1).]↩}
^{12. [Calif. Penal Code § 286(e).]↩}
^{13. [Calif. Penal Code § 286(e).]↩}
^{14. [CALCRIM No. 1030.]↩}
^{15. [CALCRIM No. 1030.]↩}
^{16. [CALCRIM No. 1032.]↩}
^{17. [CALCRIM No. 1030.]↩}
^{18. [CALCRIM No. 3402.]↩}
^{19. [People v. Barraza, (1979) 23 Cal.3d 675, 689. ]↩}
^{20. [People v. Barraza, (1979) 23 Cal.3d 675, 689. ]↩}
^{21. [CALCRIM No. 1030.]↩}
^{22. [CALCRIM No. 1032.]↩}
^{23. [Id.]↩}
^{24. [Id.]↩}
^{25. [Id.]↩}
^{26. [Calif. Penal Code § 286(j).]↩}
^{27. [Id.]↩}
^{28. [CALCRIM No. 1030.]↩}
^{29. [CALCRIM No. 3402.]↩}
^{30. [People v. Barraza, (1979) 23 Cal.3d 675, 689.]↩}
^{31. [Lawrence v. Texas (2003) 539 U.S. 558.]↩}