Allegations of forcible sexual penetration are taken very seriously in California. Convictions can lead to devastating and lifelong consequences that impact your personal life, professional career, and family relationships.

While no outcomes are guaranteed, having a sex crimes defense attorney on your side can make a significant difference in your case. The Law Office of Sheny Gutierrez have an experienced legal team that is dedicated to ensuring each client gets the fair treatment and aggressive representation they deserve.

Explaining Forcible Sexual Penetration

In California, forcible penetration is treated as a type of rape offense. As such, it involves a lack of consent and elements such as:

  • Coercion

  • Violence

  • Menace

  • Force

  • Fear

Violations of California Penal Code 289 can include scenarios like:

  • The accused perpetrator forcible penetrating the alleged victim

  • The accused perpetrator forced the alleged victim to penetrate them

  • The accused perpetrator forced the alleged victim to penetrate themselves

There are many scenarios in which a sexual act could qualify as criminal under Penal Code 289.

Using force or fear when committing forcible penetration means that sexual penetration occurred without the other person’s consent and that violence, fear, or threats were used.

California law also includes the use of foreign objects as part of the forcible sexual penetration offense. This includes:

  • Penetrating the alleged victim’s genital or anal openings with a foreign object

  • Forcing the alleged victim to penetrate your or someone else’s anal opening or genitals with a foreign object

  • Causing the alleged victim to penetrate their own anal opening or genitals with a foreign object

Foreign objects are classified as any item or substance, including body parts other than sexual organs. If sexual organs are involved, it is a crime under Penal Code 261.

Even slight penetration could be charged as a criminal act, so the most minimal amount of penetration is sufficient to qualify as a crime. For female victims, vaginal penetration is not required because even penetrating the labia is adequate for criminal prosecution.

Absence of Consent

Like many other sex offenses under California law, consent is a major component of criminality. If the other person consented to the act and understood what they were consenting to, it is not a crime.

Consent does not mean:

  • You and your accuser were in a relationship or had previously been romantically involved

  • You and your accuser were married at the time or had been married previously

  • The alleged victim did not tell you to stop or say no

Proving consent can be challenging, but an experienced criminal defense lawyer can help you establish the facts and create a solid defense.

The statute of limitations for forcible penetration (PC 801.1 and PC 802) is ten years if the alleged victim is an adult. If the accuser was a child at the time of the alleged act, they have until they turn 28 years old to press charges.

Special Circumstances Involving Forcible Penetration

While Penal Code 289 generally involves situations where force or threat were used, this is not necessarily a requirement in all scenarios.

Individuals with Disabilities

Forcible penetration of an individual with a disability does not need to involve duress or force. You may be charged with this crime if the alleged victim has a disability or mental health condition that interferes with their ability to understand the act and its consequences. If you were or should have been aware of the other person’s condition or disability, then the rules regarding consent apply differently, and you may be charged with forcible penetration.

Intoxicated Individuals

If the other person is intoxicated by alcohol or drugs and cannot resist the sexual act, this may still constitute forcible penetration. Your defense attorney can help you navigate the gray areas often found in these situations. For instance, many sexual encounters involve intoxicated individuals, and proving a level of intoxication can be challenging after the fact.

Ramifications and Sentencing for Breaking Penal Code 289

Penal Code 289 is charged as a felony in California. Penalties for forcible sexual penetration can include:

  • Felony probation

  • Up to eight years in prison

  • Up to $10,000 in fines

The consequences for breaking this law vary depending on the specific circumstances. If the crime was committed without the use of fear or force, the penalty may be less severe. However, there are factors that can increase the penalties, such as when a minor is involved, as follows:

  • For children who were 14 years old or older at the time, the maximum prison sentence increases to 10 years.

  • For children who were under 14 years old at the time, the maximum prison sentence is 12 years.

If convicted of forcible sexual penetration, you will also be required to register as a sex offender. The length of time you must stay on the register will depend on the details of the conviction. The tiers of sex offender registration in California are:

  • Tier One: registration as a sex offender is required for 10 years

  • Tier Two: registration as a sex offender is required for 20 years

  • Tier Three: registration as a sex offender is required for life

The penalties of conviction carry through your everyday life, including restrictions on where you can go and which jobs you can have. If convicted of forcible sexual penetration, you could face some or all of the following:

  • Loss of your voting privileges

  • Deportation

  • Loss of professional licensures

  • Requirement to relocate if you live within a certain distance from schools or parks

Defense Options Under California PC 289

Skilled legal representation is highly recommended for forcible sexual penetration charges. Your attorney will review your case and create the legal defense that is most appropriate for you. Some options include:

  • Arguing that the alleged victim has mistaken you for someone else

  • Attesting that the other person gave consent

  • Stating that you were under the impression the other person consented

  • Establishing that the accusation is false

Legal Tactics Employed by Defense Attorneys in Sex Crime Cases

Your defense attorney will have a variety of tactics they can use to defend you against the charges. Legal strategies include negotiating with the prosecutor, filing motions on your behalf, and claiming your rights were violated.

At The Law Office of Sheny Gutierrez, we have the experience and legal knowledge to craft the ideal defensive strategy for each of our clients. A positive outcome cannot be guaranteed, but we can promise that we’ll do everything we can to lessen the impact a criminal charge has on your life. Contact us today for a free consultation to discuss your case.