Penal Code 289 is the California law that prohibits using force or threats to sexually penetrate someone with a foreign object.
This section is analogous to California rape laws, except that rape deals with sexual intercourse, whereas Penal Code 289 deals with sexual penetration by objects other than a sexual organ.
This section applies if the sexual penetration (a) is done against the will of the victim and (b) is accomplished by means of
- menace, or
- threats to harm the victim or another person1
This section also applies to sexual penetration of someone who cannot consent because he / she is
- too intoxicated4, or
Examples of sexual penetration by force:
- Phil holds Timmy down and, against Timmy's will, Phil uses a makeshift dildo to penetrate Timmy's anus
- Steve goes on a date with Sally...Sally gets drunk and passes out at Steve's apartment...while Sally is "out", Steve pulls off her pants and uses his finger to fondle her vagina
Any forcible act of penetration is a felony, and most are punishable according to a sentencing range of 3, 6 or 8 years of California state prison. If the victim was a minor but over the age of 14, the maximum sentence increases to 10 years of prison. If the victim was under the age of 14, the maximum sentence increases to 12 years prison.
Definition of "Sexual Penetration"
For the purposes of Penal Code 289, "sexual penetration" means the penetration, however slight, of a person's genital or anal opening."8 Merely penetrating the labia majora is sufficient; it's not necessary that the vagina itself be penetrated.9
In terms of scenarios, the crime of forcible sexual penetration occurs when
- the defendant forcibly penetrates the victim,
- the defendant forces the victim to penetrate him / herself, OR
- the defendant makes the victim penetrate the defendant or a third party10
Definition of "Foreign Object"
Penal Code 289 prohibits forced penetration by a "foreign object, substance, instrument, or device." This includes any instrument and any part of the body except a sexual organ.11 A finger is considered a foreign object.12
This category also includes penetration by an "unknown object." An unknown object includes any foreign object, substance, instrument, or device, or any part of the body, including a penis, if it is not known what object penetrated the opening.13
Many "forcible acts of penetration" cases come down to he-said / she-said scenarios where the prosecution relies on the credibility of the accuser. False accusations are common and, unfortunately, many innocent people get charged and convicted.
Our law firm has enjoyed great success in fighting wrongful allegations of sexual penetration. Some of the defenses we've used successfully include:
- Our client honestly and reasonably believed the accuser was a willing, consensual participant
- The accuser is making up false allegations due to ulterior motives
- Although some touching occurred, it stopped short of sexual penetration, as the law defines it
Relation to "Rape" and "Oral Copulation by Force"
Penal Code 289 is one of three statutes that address sexual assault in California. Rape laws (defined in Penal Code 261) address sexual intercourse. Oral copulation by force or fear addresses sexual contact between one person's mouth and the other person's anus or sexual organs. While rape laws apply to sexual penetration with the penis, Penal Code 289 applies to sexual penetration with a foreign object (meaning almost anything other than the mouth or the penis).
All three of these laws are the same in terms of their definitions of consent, lack of consent, and their sentencing schemes. All three carry a sentence of up to 8 years of state prison.
Call Us For Help...
If you or a loved one has been charged with forcible sexual penetration by a foreign object (Penal Code 289), we urge you to contact us at Shouse Law Group for a consultation.
We have local criminal law offices in Los Angeles, Long Beach, Pasadena, Lancaster, West Covina, San Diego, Riverside, Orange County, San Bernardino, Ventura, San Jose, the San Francisco Bay area, Las Vegas Nevada, and several nearby cities to conveniently serve you. Contact us at (888) 327-4652.
1 Penal Code 289 (a)
2 Penal Code 289 (d) (1)
3 Penal Code 289 (d) (1)
4 Penal Code 289 (e)
5 Penal Code 289 (b)
6 Penal Code 290 (c)
7 The list of offenses that count as strikes under California Three Strikes Law can be found in Penal Code Sections 667.5(c), 1192.7(c) and 1192.8(a). These sections list subdivisions (a) and (j) of Penal Code 289. These subdivisions would encompass all the scenarios described above except where the victim is an adult who could not consent because of unconsciousness, being asleep, disability or intoxication.
8 See CALCRIM Jury Instruction 1045.
9 People v. Quintana (2001) 89 Cal.App.4th 1362, 1371.
10 People v. Keeney (App. 3 Dist. 1994) 29 Cal.Rptr.2d 451, 24 Cal.App.4th 886.
11 Penal Code 289 (k) (2)
11 People v. Wilcox (1986) 177 Cal.App.3d 715, 717, 223 Cal.Rptr. 170.
13 See CALCRIM Jury Instruction 1045.