October 8, 2015 By Stephen Klarich

Is Sodomy Always a Crime in California?

Sodomy is a crime in California, but that does not mean that sodomy is always treated as a crime. Essentially, sodomy is anal sex. It is defined as any sexual penetration by one’s penis to another’s anus no matter how slight.1

In 2003, the Supreme Court in Lawrence v. Texas declared that criminalizing anal sex between consenting adults was unconstitutional. The decision was the Supreme Court’s way of taking a moral stance against the discrimination of gays. Sodomy laws once basically criminalized homosexual acts, but sodomy can be a crime in California today regardless if it involves a homosexual or heterosexual act.

When Sodomy is a Crime in California

Under California Penal Code 286 PC, sodomy remains unlawful in the limited context of non-consensual anal sex, as well as sodomy between an adult and a minor. Consent means some affirmative act of free will with full knowledge of the circumstances that communicates each party’s willingness to participate in the sexual act.

If you engage in anal sex with a partner, that person cannot have lawfully consented if any of the following are true:2

  • They were asleep
  • They did not know, perceive or were cognizant of the act as it occurred
  • They were not aware of the “essential characteristics” of the act because of a fraudulent act; OR
  • They were incapable of forming lawful consent either because they were:
    • Under eighteen (18) years of age
    • Too intoxicated; OR
    • Suffer from a mental or physical disability of which you were reasonably aware

You should also know that the mere fact that you have had a previous sexual relationship or currently in a relationship with a person —marital or otherwise—does not, by itself, constitute consent.3 Consent is also not presumed merely by the fact that your partner requested that you wear a condom or use some method of birth control.4

Punishment for Sodomy (Penal Code 286)

punishment for sodomy
If you are convicted of felony sodomy without consent and/or with a minor, you face a sentence of 3 years in state prison.

Sodomy is a wobbler offense in California, meaning that depending on the circumstances of your case, the prosecutor has discretion to charge the crime as a misdemeanor or a felony.

If convicted of misdemeanor sodomy, you face up to 364 days in county jail and a maximum base fine of $1,000.5 If you are charged with felony sodomy, you face up to 3 years in prison and up to a $10,000 fine.6

If you are are over 21 years of age and you engage in anal sex with a minor under 16 years old, there is no discretion and you will be charged with a felony.

Under the following circumstances, sodomy will be charged as a felony and stricter penalties may be imposed:

  • You used force, threats of force, fear, or bodily injury to engage in the sexual act (additional 3-8 years in prison);7
  • Sodomizing a minor under 14 years of age (3-8 years in prison);8
  • You used force, threats of force, or fear to engage in the sexual act against a minor (7-13 years in prison);9
  • Accomplish the sexual act by a fraudulent act or under color of the law by virtue of your office (3-8 years in prison);10

In addition, you may be required to register as a sex offender for the rest of your life under California Penal Code Section 290. You could also receive a strike on your criminal record under California Three Strikes law.

Call the Sodomy Attorneys at Wallin & Klarich Today

partners 2015 - sodomy
The attorneys at Wallin & Klarich have been defending those charged with sodomy for over 30 years.

Sodomy is a serious crime with severe consequences. That is why it is important that you contact a skilled criminal defense lawyer immediately if you are being accused of sodomy. Our knowledgeable attorneys have over 30 years of experience successfully defending our clients facing sodomy charges. Let us help you now.

With offices located in Los Angeles, Sherman Oaks, Torrance, Orange County, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is an experienced Wallin & Klarich criminal defense attorney available to help you no matter where you work or live.

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

1. Pen. Code, § 286

2. (Pen. Code, § 286(f)-(g)

3. Pen. Code, § 261.6

4. Pen. Code, § 261.7

5. Pen. Code, § 286(b)(1)

6. Pen. Code, § 672

7. Pen. Code, § 286(c)(2)(A)

8. Pen. Code, § 286(c)(1)

9. Pen. Code, § 286(c)(2)(B)-(C)

10. Pen. Code, § 286(j)

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