Forcible Sexual Penetration with a Foreign Object
Penal Code 289 PC

The California crime of “forcible penetration with a foreign object” (also known as “forcible sexual penetration” or “sexual penetration by force or fear”) is described in California Penal Code 289 PC.1

The basic legal definition of forcible penetration with a foreign object is:

  1. Committing an act of sexual penetration with another person,
  2. Where that penetration is accomplished using a foreign or unknown object,
  3. Without the other person's consent,
  4. Through the use of force, violence, duress, menace, fear of immediate and unlawful bodily injury, or a threat to retaliate.2
Assault_shadows
Forcible acts of sexual penetration can be committed through force or fear.

And a person may also face forcible sexual penetration charges for:

  • Committing sexual penetration with a foreign object with a person who is unable to legally consent because of a mental disorder or developmental or physical disability;
  • Committing sexual penetration with a foreign object with a person who is unconscious of the nature of the act; or
  • Committing sexual penetration with a foreign object with someone who is too intoxicated to resist.3

Examples

Some examples of scenarios that could lead to sexual penetration with a foreign object charges in California include:

  • A man uses physical force to subdue a woman and then puts his finger into her vagina;
  • Several members of a college fraternity use a beer bottle to penetrate the vagina of a woman who is passed out drunk at their frat house; and
  • A man wielding a knife threatens to stab a woman unless she uses a dildo to penetrate the anus of another man.

Penalties

PC 289 forcible acts of sexual penetration is a felony in California law.

In most cases, it carries a potential California state prison sentence of three (3), six (6) or eight (8) years, and/or a fine of up to ten thousand dollars ($10,000).4

A conviction for forcible penetration with a foreign object will also make you subject to California's lifelong sex offender registration requirement.5

This means that if you are convicted under California Penal Code 289, you must register with the state at least every year for the rest of your life—or else face additional felony charges for failure to register as a sex offender.6

Img-failure-to-register-map
A forcible sexual penetration conviction will lead to California's sex offender registration requirement.
Legal defenses

As with many California sex crimes, forcible penetration with a foreign object is frequently charged unfairly—often as a result of false accusations by someone who knows the defendant.

If this happens to you or someone you love, we recommend that you hire an experienced California sex crimes defense attorney. S/he can help you use certain common legal defenses to fight the charges, possibly including:

  • The alleged “victim” actually consented,
  • The defendant reasonably believed that the “victim” had consented, or
  • The accusations are false.

In order to help you better understand the California crime of forcible penetration with a foreign object, our California criminal defense attorneys will address the following:

1. Legal Definition of Forcible Penetration with a Foreign Object

1.1. Forcible sexual penetration by force or fear
1.2. Forcible sexual penetration of a disabled person
1.3. Forcible sexual penetration of an unconscious person
1.4. Forcible sexual penetration of an intoxicated person

2. Penalties for PC 289 Forcible Sexual Penetration

2.1. Forcible sexual penetration of a minor
2.2. Sex offender registration requirement

3. Legal Defenses to Charges of Forcible Penetration with a Foreign Object

4. Penal Code 289 and Related Offenses

4.1. Penal Code 288a oral copulation by force or fear
4.2. Penal Code 261 rape
4.3. Penal Code 243.4 sexual battery

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

1. Legal Definition of Forcible Penetration with a Foreign Object

There are several distinct legal definitions of forcible penetration with a foreign object—depending on the subsection of Penal Code 289 PC under which you are charged.

1.1. Forcible sexual penetration by force or fear

The basic legal definition of sexual penetration by force or fear has the following “elements of the crime” (these are facts that the prosecutor must prove for you to be guilty of this offense):

  1. You committed an act of sexual penetration with another person;
  2. That penetration was accomplished using a foreign object, substance, instrument, or device, or an unknown object;
  3. The other person did not consent to the penetration; and
  4. You accomplished the penetration through force, violence, duress, menace, fear of immediate and unlawful bodily injury, or future threats of bodily harm.7

Let's take a better look at some of these elements to get a clearer sense of their meaning.

Sexual penetration, with a foreign object

Sexual penetration is defined under California law as any of the following, when done for the purpose of sexual abuse, arousal, or gratification:

  • Any penetration, however slight, of the genital or anal opening of the victim;
  • Causing the victim to penetrate, however slightly, the genital or anal opening of the defendant or a third person; or
  • Causing the victim to penetrate, however slightly, his or her own genital or anal opening.8
Forcpen_beerbottle
Forcible penetration with an object like a beer bottle is covered by Penal Code 289 PC.

“With a foreign object” can mean virtually any object, including a body part other than a sexual organ.9 (Penetration with a sexual organ is sexual intercourse and, when done without consent, will lead to charges for Penal Code 261 rape.)

Example: Aaron kidnaps two teenage girls at gunpoint. He drives them to a vacant lot and threatens to kill them if they do not do what he says.

Aaron then orders one girl to put her finger in the other's vagina. He watches and masturbates as she does so.

Aaron is guilty of forcible penetration by force or fear. Also, he has committed the crime against both girls (the one who was penetrated, and the one whom he forced to do the penetrating).

If the person being penetrated is female, then sexual penetration can occur even if her actual vagina is not penetrated. Penetration of the “labia majora” (outer lips of the female genitalia) is sufficient.10

Example: While watching television with her five-year-old niece, Joanne puts her hand down the girl's pants and inserts her fingers into the girl's labia (but not actually into her vagina).

Joanne has committed sexual penetration by force or fear.11

Note that the legal definition of forcible penetration with a foreign object is met when the defendant is acting for purposes of sexual arousal or gratification, OR for purposes of sexual abuse. “Sexual abuse” means penetration for the purpose of causing pain, injury, or discomfort.12

Example: Scott and Warren have been hired to “rough up” Teddy, who owes money to a loan shark they work for.

Scott and Warren abduct Teddy and take him to a secluded spot. They beat him, and then Scott holds him down while Warren inserts a broom handle into his anus.

Scott and Warren do not get any sexual pleasure out of that act. But they are doing it in order to cause Teddy pain (“sexual abuse”). Thus, they are guilty under Penal Code 289.

Img-domestic-violence-gun
Forcible penetration with a foreign object can be committed for purposes of abuse as well as sexual gratification.
Lack of consent

Just as with oral copulation by force or fear and other similar sex crimes, lack of consent is a key element of Penal Code 289 forcible penetration.13

In order to consent to sexual penetration, a person must both

  • act freely and voluntarily, and
  • understand the nature of their act.14

The following facts, by themselves, will not be enough to prove that the alleged victim actually consented to sexual penetration:

  • The defendant and the victim were dating or had dated,
  • The defendant and the victim were or had been married, or
  • The victim requested that the defendant use a condom.15

Example: Maria and Dave are former live-in lovers who have just broken up. Dave is in the process of moving his things out of the apartment they once shared.

One night Dave comes over to get some of his belongings. He and Maria have a beer together and start talking and laughing, then kissing.

But Maria struggles and says no when Dave tries to remove her clothes. He overpowers her, removes her underwear, and penetrates her vagina with his finger.

Dave is probably guilty of forcible penetration with a foreign object. He and Maria used to date and engage in consensual sexual activity of this sort—but that is not enough to trump the strong evidence that she did not consent to the penetration at this time.

Forcible penetration

To be guilty of this form of forcible sexual penetration, you must have accomplished the penetration through one of the following:

  1. Force—meaning just enough physical force to overcome the other person's will;
  2. Violence;
  3. Duress—meaning a direct or implied threat of force, violence, danger, hardship, or retribution that would cause a reasonable person to do something s/he would not otherwise do;
  4. Menace—meaning a threat, statement, or act showing an intent to injure someone;
  5. A threat of immediate and unlawful bodily injury; and/or
  6. A threat to retaliate if the victim does not submit—by kidnapping, unlawfully restraining or confining, or inflicting extreme pain, serious bodily injury, or death on the victim or a third party.16
1.2. Forcible sexual penetration of a disabled person

You can also be guilty of forcible sexual penetration under PC 289 if you don't use force, duress, etc.

Ocff_mentaldisability
Sexual penetration with a foreign object of a mentally disabled person can lead to PC 289 charges.

For example, you are guilty of this crime if you:

  1. Commit an act of sexual penetration with someone who has a mental disorder or developmental or physical disability that prevents him/her from understanding the nature and possible consequences of the act, and
  2. Know or reasonably should have known that the other person's disorder or disability would prevent him/her from legally consenting.17

Example: Bob works in a group home for mentally disabled adults. One of his clients is Rachel, a 25-year-old woman with the mental age of a 4-year-old. Bob has known Rachel for years and is aware of her limited capacities.

One day Bob gets Rachel alone and persuades her to penetrate his anus with her finger. Bob is sexually aroused by this.

Bob is guilty of forcible sexual penetration even though he didn't actually use force or fear.

1.3. Forcible sexual penetration of an unconscious person

You may also be convicted of PC 289 penetration with a foreign object if:

  1. You engage in sexual penetration with a foreign object with someone who is unconscious of the nature of the act, and
  2. You know that s/he is unable to resist for this reason.18

The “victim” does not have to literally be unconscious for this section of the law to apply. “Unconscious of the nature of the act” can mean that:

  • S/he is unconscious or asleep,
  • S/he is unaware that the act is occurring, OR
  • S/he is not aware of the essential characteristics of the act because the perpetrator tricked, lied to, or concealed information from him/her.19

Example: Jim is a "New Age" healer who claims to use therapeutic massage to cure various ailments. Sometimes he inserts his finger into the vaginas of his female patients as part of this “massage”—and he gets sexually aroused while doing so.

Jim is tricking his patients so that they are unaware of the essential nature of what he is doing. Thus, he may be guilty of sexual penetration of an unconscious person.

1.4. Forcible sexual penetration of an intoxicated person

Finally, you may be guilty under Penal Code 289 if you commit an act of sexual penetration with a foreign object, and both of the following are true:

  1. The other person is incapable of resisting because s/he has consumed drugs, alcohol, or another intoxicating substance; and
  2. You knew or reasonably should have known that s/he could not consent because of this.20
Ocff_drunk_20woman
Penetration with a foreign object of an intoxicated person is considered a form of forcible acts of sexual penetration.

Obviously, there is a lot of potential for gray areas here—since many sexual encounters take place when one or both parties are intoxicated.

But for purposes of Penal Code 289 PC, a person is considered too intoxicated to consent if s/he is unable to understand and weigh:

  • The physical and moral nature of the sexual penetration, and/or
  • Its probable consequences.21

2. Penalties for PC 289 Forcible Sexual Penetration

Penal Code 289 forcible sexual penetration with a foreign object is a California felony.22

The potential penalties include:

  • Felony (formal) probation;
  • Three (3), six (6) or eight (8) years in California state prison; and/or
  • A fine of up to ten thousand dollars ($10,000).23
2.1. Forcible sexual penetration of a minor

If the alleged victim of forcible sexual penetration with a foreign object is a minor (that is, under 18 when the offense occurs), the potential prison sentence increases.

Prop47_prisoncuffs
You will face a longer prison sentence for forcible penetration with a foreign object of a minor.

In that case, you may face:

  • Six (6), eight (8) or ten (10) years in prison if s/he is 14 years of age or older; or
  • Eight (8), ten (10) or twelve (12) years in prison if s/he is under 14.24
2.2. Sex offender registration requirement

If you are convicted under Penal Code 289 PC, you will also be subject to California's sex offender registration requirement.25

The Sex Offender Registration Act requires any convicted sex offender who lives in California to register with the police of the city or county where they live. This registration has to be renewed

  1. every year, within five (5) working days of the person's birthday, and
  2. every time that person moves to a new residence.26

As draconian as the state prison sentences for PC 289 are, this requirement may actually be worse—since it lasts for the defendant's entire life.

3. Legal Defenses to Charges of Forcible Penetration with a Foreign Object

If you are charged with forcible penetration with a foreign object, do not give up hope. Experienced sex crimes defense attorneys have dealt with this California crime many times in the past—and will know the best legal defenses to deploy in your individual case.

Defenses that may be helpful include:

There was actually consent

As we discussed above, lack of consent is a key element of the crime of PC 289 forcible sexual penetration.27

According to Fresno sex crimes defense attorney Neil Shouse28:

“In many of the Penal Code 289 cases I've seen, there is a lot of ambiguity about whether the alleged “victim” actually consented. And lack of consent can be very hard to prove beyond a reasonable doubt. Cases often come down to competing “he said/she said” allegations.”

You cannot be convicted of forcible sexual penetration with a foreign object unless the prosecutor can prove beyond a reasonable doubt that there was no consent. In many cases, this will not be possible.

You reasonably believed that there was consent

Even if the victim didn't actually consent to the sexual penetration, it is still a valid defense to Penal Code 289 PC charges if you actually and reasonably believed that s/he consented.29

Img-lewd-conduct-gavel
You are not guilty of forcible acts of sexual penetration if you reasonably believed that the other person consented to the acts.

Many jury members can relate to a situation in which there is ambiguity about one sexual partner's consent to a particular sexual act. Reasonable belief in consent is thus one of the most powerful defenses to forcible sexual penetration charges.

You were falsely accused

As with other sex crimes, people are falsely accused of sexual penetration by force or fear all too often.

Typically, the accuser is a former or current sexual partner—and acting out of jealousy, revenge, anger, etc.

But the accuser may also be a parent, child, or friend of a former sexual partner, a business or romantic rival, or anyone else who may have a grudge against you.

The best way to fight false allegations of forcible penetration is to rely on alibis, physical evidence, etc., to show that you simply could not have committed this crime.

4. Penal Code 289 and Related Offenses

Certain other California sex crimes are frequently charged along with (or instead of) Penal Code 289 forcible penetration with a foreign object.

These include:

4.1. Penal Code 288a oral copulation by force or fear

Penal Code 288a oral copulation by force or fear is almost identical to Penal Code 289 forcible penetration—except that the criminal sex act is oral sex, not sexual penetration.30

Ocff_manwithstick
Oral copulation by force or fear is a very similar crime to forcible sexual penetration with a foreign object.

Many accusations of sexual assault will involve claims that the defendant performed a number of different sex acts with the victim. As a result, people are frequently charged with both Penal Code 288a PC and Penal Code 289 PC.

Oral copulation by force or fear is also a California felony. The potential prison sentence is the same as that for forcible sexual penetration—3, 6, or 8 years in most cases, but up to 12 years if the victim is a minor.31

4.2. Penal Code 261 rape

Penal Code 261 rape is defined as nonconsensual sexual intercourse accomplished by means of threats, force, or fraud.32

In other words, the legal definition of rape is very close to the definition of forcible sexual penetration—except that with rape the key sexual act is intercourse.

In many cases involving allegations of nonconsensual sex, the defendant is accused of both PC 261 rape and PC 289 penetration by force or fear.

California rape is usually a felony carrying a potential state prison sentence of three (3), six (6) or eight (8) years.33

4.3. Penal Code 243.4 sexual battery

Penal Code 243.4 sexual battery/sexual assault is the touching of another person's intimate parts without their consent, for purposes of sexual gratification, arousal or abuse.34

Sexual battery is a wobbler in California law—meaning that it may be charged as either amisdemeanor or a felony. In most cases, the maximum felony prison sentence is four (4) years.35

Depending on the circumstances of your case, you may be able to get your forcible penetration with a foreign object charges reduced to sexual battery charges—which carry a lighter sentence.

Call us for help…

Help-support-call-us

For questions about the crime of forcible penetration with a foreign object, or to discuss your case confidentially with one of our California criminal defense attorneys, do not hesitate to contact us at Shouse Law Group.

We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

For more information on Nevada sexual assault/rape laws, please see our page on Nevada sexual assault/rape laws.

You may also find helpful information in our related articles on Legal Definition of a Felony in California Law; California's Sex Offender Registration Requirement; The Crime of Failure to Register as a Sex Offender in California; California Sex Crimes Defense; Common Legal Defenses to California Crimes; Penal Code 261 Rape; Penal Code 288a Oral Copulation by Force or Fear; California Kidnapping Laws; Felony (Formal) Probation in California; Alibis as a California Legal Defense; Penal Code 243.4 Sexual Battery/Sexual Assault; Legal Definition of a Wobbler in California Law; and Legal Definition of a California Misdemeanor.

Additional Resources:

Sexual Recovery Institute – Provides assessment and treatment for sexual addiction

Legal References:


1 Penal Code 289 PC – Forcible sexual penetration with a foreign object. (“(a) (1) (A) Any person who commits an act of sexual penetration 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 three, six, or eight years. (B) Any person who commits an act of sexual penetration upon a child 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 8, 10, or 12 years. (C) Any person who commits an act of sexual penetration upon a minor who is 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 6, 8, or 10 years. (D) This paragraph does not preclude prosecution under Section 269, Section 288.7, or any other provision of law. (2) Any person who commits an act of sexual penetration when the act is accomplished against the victim's will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat, shall be punished by imprisonment in the state prison for three, six, or eight years. . . . (k) As used in this section: (1) "Sexual penetration" is the act of causing the penetration, however slight, of the genital or anal opening of any person or causing another person to so penetrate the defendant's or another person's genital or anal opening for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object. (2) "Foreign object, substance, instrument, or device" shall include any part of the body, except a sexual organ. (3) "Unknown object" shall include any foreign object, substance, instrument, or device, or any part of the body, including a penis, when it is not known whether penetration was by a penis or by a foreign object, substance, instrument, or device, or by any other part of the body. (l) As used in subdivision (a), "threatening to retaliate" means a threat to kidnap or falsely imprison, or inflict extreme pain, serious bodily injury or death. (m) As used in this section, "victim" includes any person who the defendant causes to penetrate the genital or anal opening of the defendant or another person or whose genital or anal opening is caused to be penetrated by the defendant or another person and who otherwise qualifies as a victim under the requirements of this section.”)

2 Judicial Council of California Criminal Jury Instructions (“CALCRIM”) 1046 – Sexual Penetration by Force, Fear, or Threats. (“The defendant is charged [in Count ______] with sexual penetration by force. To prove that the defendant is guilty of this crime, the People must prove that: 1. The defendant committed an act of sexual penetration with another person; 2. The penetration was accomplished by using (a/an) (foreign object[,]/ [or] substance[,]/ [or] instrument[,]/ [or] device[,]/ [or] unknown object); 3. The other person did not consent to the act; AND 4. The defendant accomplished the act: <Alternative 4A—force or fear> [by force, violence, duress, menace, or fear of immediate and unlawful bodily injury to anyone.] <Alternative 4B—future threats of bodily harm> [by threatening to retaliate against someone when there was a reasonable possibility that the defendant would carry out the threat. A threat to retaliate is a threat to kidnap, unlawfully restrain or confine, or inflict extreme pain, serious bodily injury, or death.] <Alternative 4C—threat of official action> [by threatening to use the authority of a public office to incarcerate, arrest, or deport someone. A public official is a person employed by a government agency who has authority to incarcerate, arrest, or deport. The other person must have reasonably believed that the defendant was a public official even if (he/she) was not.].”)

3 Penal Code 289 PC – Forcible sexual penetration with a foreign object. (“(b) Except as provided in subdivision (c), any person who commits an act of sexual penetration, and the victim is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act or causing the act to be committed, shall be punished by imprisonment in the state prison for three, six, or eight years. Notwithstanding the appointment of a conservator with respect to the victim pursuant to the provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving legal consent. (c) Any person who commits an act of sexual penetration, and the victim is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act or causing the act to be committed and both the defendant and the victim are at the time confined in a state hospital for the care and treatment of the mentally disordered or in any other public or private facility for the care and treatment of the mentally disordered approved by a county mental health director, shall be punished by imprisonment in the state prison, or in a county jail for a period of not more than one year. Notwithstanding the existence of a conservatorship pursuant to the provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving legal consent. (d) Any person who commits an act of sexual penetration, and the victim is at the time unconscious of the nature of the act and this is known to the person committing the act or causing the act to be committed, shall be punished by imprisonment in the state prison for three, six, or eight years. As used in this subdivision, "unconscious of the nature of the act" means incapable of resisting because the victim meets one of the following conditions: (1) Was unconscious or asleep. (2) Was not aware, knowing, perceiving, or cognizant that the act occurred. (3) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraud in fact. (4) 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. (e) Any person who commits an act of sexual penetration when the victim is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused, shall be punished by imprisonment in the state prison for a period of three, six, or eight years.”)

4 Penal Code 289 PC – Forcible sexual penetration with a foreign object, endnotes 1 and 3, above.

See also Penal Code 672 PC. (“Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies [such as forcible penetration with a foreign object], in addition to the imprisonment prescribed.”)

5 Penal Code 290 PC – Sex Offender Registration Act. (“(a) Sections 290 to 290.024, inclusive, shall be known and may be cited as the Sex Offender Registration Act. All references to “the Act” in those sections are to the Sex Offender Registration Act. (b) Every person described in subdivision (c), for the rest of his or her life while residing in California, or while attending school or working in California, as described in Sections 290.002 and 290.01, shall be required to register with the chief of police of the city in which he or she is residing, or the sheriff of the county if he or she is residing in an unincorporated area or city that has no police department, and, additionally, with the chief of police of a campus of the University of California, the California State University, or community college if he or she is residing upon the campus or in any of its facilities, within five working days of coming into, or changing his or her residence within, any city, county, or city and county, or campus in which he or she temporarily resides, and shall be required to register thereafter in accordance with the Act. (c) The following persons shall be required to register: Any person who, since July 1, 1944, has been or is hereafter convicted in any court in this state or in any federal or military court of a violation of . . . Section . . . 289 [forcible sexual penetration with a foreign object] . . . .”)

6 California Penal Code 290.018 PC – Penalties for [failure to register as a sex offender]. (“(b) Except as provided in subdivisions (f), (h), and (j), any person who is required to register under the act based on a felony conviction [such as a conviction for forcible sexual penetration with a foreign object] or juvenile adjudication who willfully violates any requirement of the act or who has a prior conviction or juvenile adjudication for the offense of failing to register under the act and who subsequently and willfully violates any requirement of the act is guilty of a felony and shall be punished by imprisonment in the state prison for 16 months, or two or three years.”)

7 CALCRIM 1046 – Sexual Penetration by Force, Fear, or Threats, endnote 2, above.

8 CALCRIM 1046 – Sexual Penetration by Force, Fear, or Threats. (“Sexual penetration means (penetration, however slight, of the genital or anal opening of the other person/ [or] causing the other person to penetrate, however slightly, the defendant's or someone else's genital or anal opening/ [or] causing the other person to penetrate, however slightly, his or her own genital or anal opening) for the purpose of sexual abuse, arousal, or gratification.”)

9 CALCRIM 1046 – Sexual Penetration by Force, Fear, or Threats. (“[A foreign object, substance, instrument, or device includes any part of the body except a sexual organ.]”)

10 People v. Quintana (2001) 89 Cal.App.4th 1362.

11 Based on the facts of the same.

12 CALCRIM 1046 – Sexual Penetration by Force, Fear, or Threats. (“[Penetration for sexual abuse means penetration for the purpose of causing pain, injury, or discomfort.]”)

13 CALCRIM 1046 – Sexual Penetration by Force, Fear, or Threats, endnote 2, above.

14 CALCRIM 1046 – Sexual Penetration by Force, Fear, or Threats. (“[In order to consent, a person must act freely and voluntarily and know the nature of the act.]”)

15 CALCRIM 1046 – Sexual Penetration by Force, Fear, or Threats. (“[Evidence that the defendant and the person (dated/were married/ had been married) is not enough by itself to constitute consent.] [Evidence that the person (requested/suggested/communicated) that the defendant use a condom or other birth control device is not enough by itself to constitute consent.]”)

16 CALCRIM 1046 – Sexual Penetration by Force, Fear, or Threats, endnote 2, above.

See also CALCRIM 1046 – Sexual Penetration by Force, Fear, or Threats. (“[An act is accomplished by force if a person uses enough physical force to overcome the other person's will.] [Duress means a direct or implied threat of force, violence, danger, hardship, or retribution that causes a reasonable person to do [or submit to] something that he or she would not otherwise do [or submit to]. When deciding whether the act was accomplished by duress, consider all the circumstances, including the age of the other person and (his/her) relationship to the defendant.] [Retribution is a form of payback or revenge.] [Menace means a threat, statement, or act showing an intent to injure someone.] [An act is accomplished by fear if the other person is actually and reasonably afraid [or (he/she) is actually but unreasonably afraid and the defendant knows of (his/her) fear and takes advantage of it].]”)

17 CALCRIM 1049 – Sexual Penetration of a Disabled Person. (“The defendant is charged [in Count ______] with sexual penetration of a mentally or physically disabled person. To prove that the defendant is guilty of this crime, the People must prove that: 1. The defendant committed an act of sexual penetration with another person; 2. The penetration was accomplished by using (a/an) (foreign object[,]/ [or] substance[,]/ [or] instrument[,]/ [or] device[,]/ [or] unknown object); 3. The other person had a (mental disorder/developmental or physical disability) that prevented (him/her) from legally consenting; AND 4. The defendant knew or reasonably should have known that the other person had a (mental disorder/ developmental or physical disability) that prevented (him/ her) from legally consenting.”)

18 CALCRIM 1048 – Sexual Penetration of an Unconscious Person. (“The defendant is charged [in Count ______] with sexual penetration of a person who was unconscious of the nature of the act. To prove that the defendant is guilty of this crime, the People must prove that: 1. The defendant committed an act of sexual penetration with another person; 2. The penetration was accomplished by using (a/an) (foreign object[,]/ [or] substance[,]/ [or] instrument[,]/ [or] device[,]/ [or] unknown object); 3. The other person was unable to resist because (he/she) was unconscious of the nature of the act; AND 4. The defendant knew that the other person was unable to resist because (he/she) was unconscious of the nature of the act.”)

19 CALCRIM 1048 – Sexual Penetration of an Unconscious Person. (“A person is unconscious of the nature of the act if he or she is (unconscious or asleep/ [or] not aware that the act is occurring/ [or] not aware of the essential characteristics of the act because the perpetrator tricked, lied to, or concealed information from the person/ [or] not aware of the essential characteristics of the act because the perpetrator fraudulently represented that the sexual penetration served a professional purpose when it served no professional purpose).”)

20 CALCRIM 1047 – Sexual Penetration of an Intoxicated Person. (“The defendant is charged [in Count ______] with sexual penetration of a person while that person was intoxicated. To prove that the defendant is guilty of this crime, the People must prove that: 1. The defendant committed an act of sexual penetration with another person; 2. The penetration was accomplished by using (a/an) (foreign object[,]/ [or] substance[,]/ [or]instrument[,]/ [or]device[,]/ [or] unknown object); 3. The effect of (a/an) (intoxicating/anesthetic/controlled) substance prevented the other person from resisting the act; AN 4. The defendant knew or reasonably should have known that the effect of that substance prevented the other person from resisting the act.”)

21 CALCRIM 1047 – Sexual Penetration of an Intoxicated Person. (“A person is prevented from resisting if he or she is so intoxicated that he or she cannot give legal consent. In order to give legal consent, a person must be able to exercise reasonable judgment. In other words, the person must be able to understand and weigh the physical nature of the act, its moral character, and probable consequences. Legal consent is consent given freely and voluntarily by someone who knows the nature of the act involved.”)

22 Penal Code 289 PC – Forcible sexual penetration with a foreign object, endnotes 1 and 3, above.

23 Same.

See also Penal Code 672 PC, endnote 4, above.

24 Penal Code 289 PC – Forcible sexual penetration with a foreign object, endnote 1, above.

25 Penal Code 290 PC – Sex Offender Registration Act [applies to forcible penetration with a foreign object convictions], endnote 5, above.

26 See same.

27 CALCRIM 1046 – Sexual Penetration by Force, Fear, or Threats, endnote 2, above.

28 Fresno sex crimes defense attorney Neil Shouse is the Managing Attorney of Shouse Law Group. He is a former Los Angeles County Deputy District Attorney, where he worked on cases ranging from DUIs and drug charges to complex, high profile murders. Shouse is an expert on all aspects of criminal and sex crimes defense law and frequently appears as a guest legal commentator on national television.

29 CALCRIM 1046 – Sexual Penetration by Force, Fear, or Threats. (“<Defense: Reasonable Belief in Consent> [The defendant is not guilty of forcible sexual penetration if (he/ she) actually and reasonably believed that the other person consented to the act. The People have the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe that the other person consented. If the People have not met this burden, you must find the defendant not guilty.]”)

30 Penal Code 288a PC – Oral copulation by force or fear [compare to definition of forcible penetration with a foreign object].

31 Same.

32 Penal Code 261 PC -- Rape defined [compare to definition of forcible penetration with a foreign object].

33 Penal Code 264 PC—Rape; punishment [compare to punishment for Penal Code 289 PC forcible sexual penetration]. (“(a) Except as provided in subdivision (c), rape, as defined in Section 261 or 262, is punishable by imprisonment in the state prison for three, six, or eight years.”)

34 Penal Code 243.4 PC – Sexual battery [compare to forcible penetration with a foreign object law]. ("(a) Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).”)

35 Same.

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