In California, rape is defined as forcing a person to have sexual intercourse against his or her will. For the purposes of this law under California Penal Code Section 261, “sexual intercourse” is defined as penetration of the vagina with a penis. So, that means you can’t be convicted of this crime if you did not use your penis to forcibly penetrate the vagina of the alleged victim. But what if you used an object?
Rape vs. Forcible Penetration with a Foreign Object
The crime of rape in California is just one of the many crimes associated with acts of sexual assault. Rape laws in California deal specifically with the act of non-consensual sexual intercourse, but there are separate laws for other acts of sexual assault, including penetration of the anus (sodomy under PC 286) and the mouth (oral copulation by force or fear under PC 288a).
One of these separate crimes is forcible penetration with a foreign object. California Penal Code Section 289 (PC 289) describes unlawful acts of sexual penetration involving a foreign object. Generally, this crime occurs when someone commits a form of rape without involving the penis.
In order to convict you of forcible penetration with a foreign object, the prosecution must prove that you:
- Penetrated your victim’s vagina or anus, however slight, and
- Did so by using an unknown object, such as a finger, sex toy or other inanimate object (a penis could be considered a foreign object if the victim did not know it was a penis due to certain mentally constraining circumstances), and
- Did so by means of force
In most prosecutions of a charge of PC 289, the defendant is accused of putting or making someone else put some kind of object into the vagina or rectum of another person or him/herself, either against the victim’s will or without his or her ability to give legal consent to being penetrated.
Forcible penetration involving an adult generally requires an element of force, fear, duress or threat to be unlawful. It could also involve a victim who was unaware, unconscious, deceived or disabled at the time of the incident.
Sexual penetration involving a minor is always unlawful, even if the minor is a willing participant. Under California law, minors can never legally consent to sexual activity.
How is a Foreign Object Defined?
PC 289 prohibits unlawful sexual penetration using a foreign object, substance, instrument, device or unknown object and includes any part of the body. To better understand this law and its application, it is important to know what is considered a “foreign object” for the purposes of PC 289.
As defined by this law, any item, substance, instrument, device or part of the body could be considered a “foreign object.” This means that essentially anything that can be put inside of another person can be considered a foreign object for the purposes of prosecution under PC 289. The object does not have to be solid. You can be charged with violating PC 289 for forcing any type of liquid into another person’s genital or anal opening if you did so for sexual stimulation or to abuse the victim.
The law also describes a foreign object as any “unknown object,” which means it is not known to the victim what the object is. What this means is that the penis could be considered a foreign object under this law if it is not known what object was being used to cause penetration.
What Constitutes Sexual Penetration?
Lastly, it is important to know how “sexual penetration” is defined under this law.
“Sexual penetration” means the act of causing penetration, however slight, of the genital or anal opening of any person for the purposes of:
- Sexual arousal,
- Sexual gratification, or
Teenagers Convicted of Forcible Penetration with a Foreign Object Charged Under PC 289
One of the most notorious cases of sexual assault in Orange County involved the crime of forcible penetration with a foreign object.1
In 2002, the 17-year-old son of former Assistant Sheriff Don Haidl and his two juvenile male accomplices were charged with rape and several counts of forcible sexual penetration.
The boys were accused of sexually assaulting a 16-year-old girl who had passed out from drug and alcohol intoxication. They were alleged to have used a pool cue, bottles and a lit cigarette to penetrate the vagina and anus of the victim.
A 21-minute videotape they made of themselves laughing and joking about the assault eventually led to their capture and prosecution.2
Years later, the “Haidl 3” were convicted as adults for the crime of sexual penetration by intoxication and each were sentenced to serve six years in prison. Greg Haidl and his co-defendants are out of prison today, but they must register as sex offenders for the rest of their lives.3
Call Wallin & Klarich if You are Charged with Forcible Penetration with a Foreign Object
If you or someone you love has been charged with unlawful sexual penetration pursuant to Penal Code Section 289, you should speak to an experienced sex crimes attorney as soon as possible. At Wallin & Klarich, our attorneys have over 35 years of experience successfully defending clients charged in sexual assault cases, including the crime of forcible sexual penetration using a foreign object. We’ve been there for thousands of clients in their time of legal need, and we can help you now.
Using their knowledge of the defenses to this crime, our sex crimes attorney at Wallin & Klarich may be able to get the charges against you reduced or dismissed altogether. We also may be able to get you probation instead of having to serve time in custody. If your case goes to trial, we will aggressively argue for a verdict of not guilty.
With offices in Orange County, Riverside, San Bernardino, Victorville, Los Angeles, West Covina, Torrance and San Diego, 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 will work hard to help you to obtain the best result possible in your case.
Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will get through this together.