Unlawful Acts of Sodomy
California Penal Code 286 PC

The legal definition of "Sodomy" is sexual contact that takes place between the penis of one person and the anus of another person.  Any penetration...regardless of how slight...is sufficient to qualify as sodomy.1

Anal copulation used to be criminalized by most states, including California.2 But the legislature has since repealed all such laws. Moreover, in the 2003 decision Lawrence v Texas, the United States Supreme Court ruled that the systematic criminalization of sodomy is unconstitutional.3

Today, anal copulation between consenting adults is perfectly legal in California and throughout the United States.

However Penal Code 286 PC, California's sodomy law, still punishes "unlawful acts of sodomy." These include

  1. forcing someone to have sodomy against his/her will; OR
  2. acts of sodomy involving minor children.4

As with any California sex crime, false allegations, mistaken identity, and faulty evidence can lead to the wrongful prosecution of many innocent people.  That's where we come in.

As former prosecutors and cops, our decades of law enforcement experience gives us insider knowledge as to how California sodomy charges are prosecuted...and, more importantly...defended.

In an effort to help you understand Penal Code 286, California's sodomy law, our California criminal defense attorneys5 will address the following:

1. How Does the Prosecutor Prove that I am Guilty of Sodomy?
2. What are the Defenses to a Penal Code 286 PC "Sodomy" Charge?
3. Penalties, Punishment, and Sentencing
for Sodomy

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

You may find further helpful information in our related articles on Penal Code 261 PC Rape, Penal Code 261.5 PC Statutory Rape, Penal Code 288 PC Lewd Acts with a Minor, Penal Code 242 PC Battery, Penal Code 243.4 PC Sexual Battery, Penal Code 290 PC Sex Offender Registration, California's Rape Shield Law, California Legal Defenses, and California Parole Law.

We also invite you to join the Shouse Law Group Facebook fan page and follow us on Twitter to receive regular updates and commentary on California criminal law issues.

1. How Does the Prosecutor Prove that I am Guilty of Violating California's Sodomy Law?

Penal Code 286 PC punishes a variety of conduct that California's sodomy law declares to be illegal.  This includes acts of sodomy that you:

  1. engage in with a minor (that is, a person who is under 18) in violation of Penal Code 286(b)(1), Penal Code 286(b)(2), or Penal Code 286(c)(1),
  2. accomplish through means of force, violence, or fear, in violation of Penal Code 286(c)(2) or Penal Code 286(c)(3), and/or
  3. perform on a person who is:
    • too intoxicated to consent to the activity, in violation of Penal Code 286(i),
    • unable to give consent due to a mental disorder or physical disability (a condition about which you know or reasonably should be aware) in violation of Penal Code 286(g) or 286(h), or
    • unconscious about the nature of the act (either because he/she is asleep, unconscious, or because you have fraudulently induced him/her into participating in an act of sodomy and you know or reasonably should know that this is the case) in violation of Penal Code 286(f).

In order to prove that you are guilty of sodomy under Penal Code 286 PC, the prosecutor must prove the following facts (otherwise known as "elements" of the crime):

  1. that you engaged in an act of sodomy with another person (any amount of penetration, regardless of how slight, constitutes sodomy...even if there is no ejaculation or skin-to-skin contact6),

    and

  2. that you accomplished the act under one of the circumstances described above.7

Let's flush out some of these terms and scenarios to gain a better understanding of their meanings.

Consent

When applied to a California sex crime such as sodomy, "consent" necessarily has two meanings:  a traditional meaning and a legal meaning.

The common meaning of consent

Traditionally, "consent" means positive cooperation -- an act of free will with complete knowledge about the actual circumstances of the act.

There are three important facts relating to traditional consent and sodomy8:

  1. Even if you and the alleged victim are or were involved in a sexual relationship, consent will not be presumed absent some additional evidence of consent9,
  2. The fact that the alleged victim asks you to wear a condom does not by itself constitute consent10, and
  3. Even if the alleged victim initially consents to engage in sodomy, he/she is free to withdraw that consent at any time.  If he/she effectively communicates that to you, you must stop the activity right then.

"Legal" consent

Legally, "consent" has to do with ability.

Minors are legally deemed to be unable to give consent.  This means that even if the minor is a willing participant in the anal copulation, you still don't have legal consent to engage in the act with him/her.  The state believes that minors are too young to appreciate and understand the legal consequences of their actions.

Similarly, someone who is severely intoxicated or who suffers from a mental disorder or a physical disability may be unable to consent legally to an act.  And although they too may be willing to engage in sodomy, prosecutors could still convict you of sodomy if you knew or reasonably should have known that the individual was incapable of giving his/her consent...but you nonetheless went ahead with the act.

That you "fraudulently" induced or obtained consent

A "fraudulent" representation is a knowingly false statement that is made with the intent to deceive and mislead.  California Penal Code 286 PC holds you accountable for unlawful acts of sodomy if you fraudulently induce the alleged victim to engage in sodomy.  This applies to situations where you convince the alleged victim to engage in anal copulation by:

  1. lying about what sodomy entails,
  2. stating that an act of sodomy will serve a professional purpose even though it will not (this might be the case if, for example, your therapist tells a patient that if the two of them engage in sodomy, it may help cure the patient's sexual dysfunction issues), and/or
  3. pretending to be the alleged victim's spouse when you are not.11

Force, violence, or fear

"Force, violence, or fear" refers to the various ways someone may compel another person to participate in an act of sodomy.  If you physically prevent the alleged victim from resisting, you are guilty of sodomy through means of force or violence.

With respect to violating California's sodomy law, "fear" can mean that you compelled the alleged victim to engage in sodomy through means of:12

  • duress13
  • menace14
  • fear of immediate bodily harm to oneself or to another,15 OR
  • fear of retaliation.16

Generally, at a sodomy trial, the prosecutor is generally allowed to introduce evidence of a defendant's prior acts of sexual misconduct.17

California's rape shield law

California's rape shield law is an evidence rule designed to protect the privacy of victims of sodomy and other sex crimes. It says that you may not prove consent in a sodomy case by introducing evidence of your accuser's past sexual conduct or sexual reputation.18

In other words, even if the person accusing you has a history of having consensual sodomy, you cannot point to that history to try to show that she or he consented with you.

2. What are the Defenses to a Penal Code 286 PC "Sodomy" Charge?

Fortunately, there are a variety of legal defenses that apply to Penal Code 286 PC. A good California criminal defense lawyer can assert these on your behalf.  The following are brief descriptions of some of the most common.

The alleged victim consented to the activity

If you reasonably and in good faith believed that the alleged victim consented to engage in sodomy, then you haven't committed a crime.19

Moreover, suppose the alleged victim initially consents...but later changes his/her mind. If he/she doesn't effectively communicate to you a withdrawal of the consent, then you aren't criminally liable for sodomy.

False allegations / wrongful arrest

Sodomy allegations are easy to make but difficult to prove. Penal Code 286 PC requires no proof of ejaculation...and only the slightest penetration. Thus a person could claim that someone sodomized him/her with little to no physical evidence to support it.

As Orange County criminal defense attorney John Murray explains20, "Emotions such as anger, revenge, and jealousy often prompt people to accuse innocent people of crimes...and this is very much the case when it comes to California sex offenses.  We do a thorough criminal investigation to ensure that false such allegations are shown for what they are, so that we can help vindicate our clients."

You reasonably believed the alleged a minor was an adult

Crimes like sodomy with a minor and California Penal Code 261.5 PC statutory rape focus on the age of the alleged victim...which is why a reasonable belief that the alleged victim is an adult serves as a valid California legal defense to these crimes.

If you engage in an act of sodomy with a willing participant whom you reasonably and in good faith believe is an adult (that is, 18 or older), you aren't guilty of illegal sodomy under Penal Code 286(b)(1) or Penal Code 286(b)(2).21

Example:  If, for example, you
  • meet the person at a bar,
  • the person tells you he/she is an adult, and/or
  • the person looks particularly "mature",
then you should not be criminally liable for a sodomy charge.

Lesser included charge of battery

Sometimes the evidence supports the charge.  But even when this is the case, a skilled California criminal defense attorney may be able to convince the prosecutor, judge, and/or jury that you are not guilty of criminal sodomy, but only of a lesser included offense.

A "lesser included offense" is one that necessarily takes place if you commit the charged offense.  In this case, Penal Code 242 PC "battery" is a lesser included offense of sodomy by force.22 Essentially, a battery is any unwanted touching of one's body.23

Example: Although Tony touches Sue's anus with his penis, and without her consent, he doesn't penetrate her.  Given these circumstances, he would be guilty of battery, not sodomy.

The benefits of a battery conviction are that it (1) carries a substantially lesser sentence, and (2) subjects you to less of a social stigma on your criminal record.

3. Penalties, Punishment, and Sentencing for California Penal Code 286 PC "Sodomy"

There are a dozen ways to violate Penal Code 286 PC, California's sodomy law. Each violation carries its own punishment.

Three of the violations are known as wobblers.  A "wobbler" is a charge that prosecutors can file as either a misdemeanor or a felony, depending on

  1. the exact circumstances of the case, and
  2. your criminal history.

Penal Code Section 286(b)(1), Penal Code 286(e), and Penal Code 286(h)are all wobblers

Engaging in sodomy

  • with a minor in violation of Penal Code 286(b)(1),
  • with a fellow jail or prison inmate in violation of Penal Code 286(e),  OR
  • with a fellow psychiatric hospital patient in violation of Penal Code 286(h)

are all wobblers.

If convicted of any of these charges as a misdemeanor, you face:24

  • informal (otherwise known as "summary") probation,
  • up to one year in a county jail, and
  • a maximum $1,000 fine.

If convicted of any of these offenses as a felony, you face:25

  • formal probation,
  • 16 months, or two or three years in the California State Prison, and
  • a maximum $10,000 fine.

Felony sodomy convictions

The remaining violations under Penal Code 286 PC are all straight felonies (meaning they cannot be reduced to a misdemeanor).  Each of these carries the same penalty, with two exceptions.  The exceptions are found in Penal Code 286(b)(2) and Penal Code 286(d).

Penal Code 286(b)(2)

Penal Code 286(b)(2):  If...at the time of the offense...you are over 21 and engage in sodomy with a minor who is under 16, you face:26

  • 16 months, or two or three years in the state prison, and
  • the other felony penalties listed above.

Penal Code 286(d)

Penal Code 286(d):  If you engage in an act of sodomy that is accomplished through force or fear and you conspire with and aid or abet another person (basically engaging in a type of "gang-rape"), you face:27

  • five, seven, or nine years in the state prison, and
  • the other felony penalties listed above.

Penal Code 286(c)

The remaining unlawful acts of sodomy under California Penal Code 286(c) (which include forcing it upon someone against his/her will, or sodomy with a child under the age of 14) subject you to:28

  • three, six, or eight years in the state prison, and
  • the other felony penalties listed above.

Additional Points about Sentencing Under California Sodomy Law

There are four final important points to note about sentencing under Penal Code 286 PC.

  1. Both misdemeanor and felony sodomy convictions subject you to registration as a sex offender under California Penal Code 290 PC.29
  2. You may receive an additional and consecutive three- to six-year prison sentence if the alleged victim suffers a "great bodily injury".30
  3. Acts of sodomy that are committed (1) by force, violence, or fear, or (2) against a child under 14 years of age, subject you to a "strike" under California's Three Strike's Law.31
  4. Penal Code 286 PC is frequently charged in connection with a variety of other offenses which could also increase your sentence.  Some of the most common related crimes include:

California Penal Code 288 PC -- lewd acts with a minor (charged when you touch a minor anywhere on his or her body with sexual intent32),

California Penal Code 261 PC -- rape (charged when you have nonconsensual sexual intercourse with another person under any of the circumstances that trigger an unlawful sodomy charge33),

California Penal Code 273a PC -- child endangerment (charged when you either (1) place a child in a dangerous situation, or (2) fail to protect a child against potential harm34), and

California Penal Code 243.4 PC -- sexual battery (charged when you touch the "intimate" part of another person with sexual intent35).

Call us for help...
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If you or loved one is charged with Penal Code 286 PC sodomy and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

Additionally, our Nevada criminal defense attorneys represent clients accused of violating Nevada's sodomy laws.  For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.

To learn about Nevada sodomy laws, go to our article on Nevada sodomy laws.

Legal References:

1California Penal Code 286 PC -- Sodomy.  ("(a) Sodomy is sexual conduct consisting of contact between the penis of one person and the anus of another person. Any sexual penetration, however slight, is sufficient to complete the crime of sodomy.")

2See George Painter, The History of Sodomy Laws in the United States.

3Lawrence v. Texas (2003) 539 U.S. 558. In a 6-3 ruling, the Supreme Court struct down a Texas sodomy law. The court ruled that private sexual acts between consenting adults are privacy rights protected by the Fourteenth Amendment. Therefor any state law, such as the Texas sodomy law, that criminalized private consensual acts of sodomy among adults was declared unconstitutional.

4See same.  ("(b)(1) Except as provided in Section 288, any person who participates in an act of sodomy with another person who is under 18 years of age shall be punished by imprisonment in the state prison, or in a county jail for not more than one year. (2) Except as provided in Section 288, any person over the age of 21 years who participates in an act of sodomy with another person who is under 16 years of age shall be guilty of a felony. (c)(1) Any person who participates in an act of sodomy with another person who is under 14 years of age and more than 10 years younger than he or she shall be punished by imprisonment in the state prison for three, six, or eight years. (2) Any person who commits an act of sodomy 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. (3) Any person who commits an act of sodomy where 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. (d) Any person who, while voluntarily acting in concert with another person, either personally or aiding and abetting that other person, commits an act of sodomy when the act is accomplished against the victim's will by means of force or fear of immediate and unlawful bodily injury on the victim or another person or where 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 five, seven, or nine years. (e) Any person who participates in an act of sodomy with any person of any age while confined in any state prison, as defined in Section 4504, or in any local detention facility, as defined in Section 6031.4, shall be punished by imprisonment in the state prison, or in a county jail for not more than one year. (f) Any person who commits an act of sodomy, and the victim is at the time unconscious of the nature of the act and this is known to the person committing the act, 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. (g) Except as provided in subdivision (h), a person who commits an act of sodomy, 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, shall be punished by imprisonment in the state prison for three, six, or eight years. Notwithstanding the existence of a conservatorship pursuant to 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 consent. (h) Any person who commits an act of sodomy, 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, 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 not more than one year. Notwithstanding the existence of a conservatorship pursuant to 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. (i) Any person who commits an act of sodomy, where the victim is prevented from resisting by an 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 three, six, or eight years. (j) Any person who commits an act of sodomy, where the victim submits under the belief that the person committing the act is the victim's spouse, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief, shall be punished by imprisonment in the state prison for three, six, or eight years. (k) Any person who commits an act of sodomy, where the act is accomplished against the victim's will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official, shall be punished by imprisonment in the state prison for three, six, or eight years. As used in this subdivision, "public official" means a person employed by a governmental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to be a public official. (l) As used in subdivisions (c) and (d), "threatening to retaliate" means a threat to kidnap or falsely imprison, or inflict extreme pain, serious bodily injury, or death. (m) In addition to any punishment imposed under this section, the judge may assess a fine not to exceed seventy dollars ($70) against any person who violates this section, with the proceeds of this fine to be used in accordance with Section 1463.23. The court, however, shall take into consideration the defendant's ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision.")

5Our California criminal defense attorneys have local law offices throughout the state, including Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, San Bernardino, Riverside and San Francisco.

6People v. Ribera (2005) 133 Cal.App.4th 81, 83.  ("We conclude that where there is penetration into a victim's anus by a perpetrator's sexual organ, it is sodomy in violation of Penal Code section 286, [California's sodomy law] even if the victim is wearing clothes at the time.")

7See California Jury Instructions - Criminal CALJICs 10.20-10.26, 10.47-10.48 and 10.47 and 10.48

8CALJIC 1.23.1 -- Consent to sodomy.  ("[The fact, if established, that the defendant and __________ engaged in a current or previous dating relationship does not by itself constitute consent.] [Evidence that the alleged victim suggested, requested, or otherwise communicated to the perpetrator that a [condom] [or] [other birth control device] be used does not by itself constitute consent.] [A person who initially consents and participates in the act has the right to withdraw that consent. To be effective as a withdrawal of consent, the person must inform the other person by words or conduct that consent no longer exists, and the other person must stop [otherwise a California Penal Code 261 rape may be charged]. The words or conduct must be sufficient to cause a reasonable person to be aware that consent has been withdrawn. If the other person knows or reasonably should know that consent has been withdrawn, forcibly continuing the act despite the objection is against the will and without the consent of the person.]")

9California Penal Code 261.6 -- Consent; current or previous dating or marital relationship...("A current or previous dating or marital relationship shall not be sufficient to constitute consent where consent is at issue in a prosecution under [California Penal Code] Section...286...")

10California Penal Code 261.7 -- Evidence that victim requested that defendant use condom or other birth control device; consent.  ("In prosecutions under [California Penal Code] Section...286 [sodomy]...in which consent is at issue, evidence that the victim suggested, requested, or otherwise communicated to the defendant that the defendant use a condom or other birth control device, without additional evidence of consent, is not sufficient to constitute consent.")

11See California Penal Code 286(j) PC -- Sodomy, endnote 4, above.  ("(j) Any person who commits an act of sodomy, where the victim submits under the belief that the person committing the act is the victim's spouse, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief, shall be punished by imprisonment in the state prison for three, six, or eight years.")

12CALJIC 10.20 -- Unlawful sodomy by force or threats.  ("["Menace" means any threat, declaration, or act that shows an intention to inflict an injury upon another.] ["Duress" means a direct or implied threat of force, violence, danger, [hardship,] or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which [she] [he] would not otherwise have performed, or acquiesce in an act to which [she] [he] otherwise would not have submitted. The total circumstances, including the age of the alleged victim, and his or her relationship to the [perpetrator] [defendant], are factors to consider in appraising the existence of the duress.] [The fear of immediate and unlawful bodily injury must be actual and reasonable under the circumstances [, or if unreasonable, the perpetrator must have known of the victim's fear and taken advantage of it].] ["Threatening to retaliate" means a threat to kidnap or falsely imprison, or inflict extreme pain, serious bodily injury, or death.]")

13"Duress" is a direct or implied threat of force, violence, danger, or retribution that coerces a reasonable person to perform an act which he/she otherwise would not have performed.  Threatening to have the alleged victim arrested or deported if he/she doesn't engage in sodomy would be an example of duress.

14This means a threat, declaration, or act that shows an intention to inflict an injury upon another person -- for example, revealing an otherwise concealed weapon.

15The alleged victim's fear must be actual and reasonable under the circumstances, or if unreasonable, you must know of the victim's fear and take advantage of it.

16Such as a threat to kidnap, falsely imprison, or inflict serious pain, injury, or death upon the alleged victim or another person.

17People v. Hurd (1970) 5 Cal.App.3d 865, 875 (overruled on other grounds).  ("Although there may be some confusion as to when and under what circumstances evidence of the commission of uncharged sex offenses with other victims is admissible, where, as here, the other offenses were similar in nature and committed upon the same victim at a point close in time to the charged offenses and the evidence of the commission of the other offenses is not based solely on the uncorroborated testimony of the victim but is substantially corroborated, such evidence is admissible.")

18Evidence Code 1103 EC – Rape shield law. (“(c)(1) Notwithstanding any other provision of this code to the contrary, and except as provided in this subdivision, in any prosecution under Section 261, 262, or 264.1 of the Penal Code, or under Section 286 [sodomy law], 288a, or 289 of the Penal Code, or for assault with intent to commit, attempt to commit, or conspiracy to commit a crime defined in any of those sections, except where the crime is alleged to have occurred in a local detention facility, as defined in Section 6031.4, or in a state prison, as defined in Section 4504, opinion evidence, reputation evidence, and evidence of specific instances of the complaining witness' sexual conduct, or any of that evidence, is not admissible by the defendant in order to prove consent by the complaining witness. (2) Notwithstanding paragraph (3), evidence of the manner in which the victim was dressed at the time of the commission of the offense shall not be admissible when offered by either party on the issue of consent in any prosecution for an offense specified in paragraph (1), unless the evidence is determined by the court to be relevant and admissible in the interests of justice. The proponent of the evidence shall make an offer of proof outside the hearing of the jury. The court shall then make its determination and at that time, state the reasons for its ruling on the record. For the purposes of this paragraph, “manner of dress” does not include the condition of the victim's clothing before, during, or after the commission of the offense. (3) Paragraph (1) shall not be applicable to evidence of the complaining witness' sexual conduct with the defendant. (4) If the prosecutor introduces evidence, including testimony of a witness, or the complaining witness as a witness gives testimony, and that evidence or testimony relates to the complaining witness' sexual conduct, the defendant may cross-examine the witness who gives the testimony and offer relevant evidence limited specifically to the rebuttal of the evidence introduced by the prosecutor or given by the complaining witness. (5) Nothing in this subdivision shall be construed to make inadmissible any evidence offered to attack the credibility of the complaining witness as provided in Section 782. (6) As used in this section, “complaining witness” means the alleged victim of the crime charged, the prosecution of which is subject to this subdivision.”)

19CALJIC 10.65 -- Belief as to consent; sodomy.  ("In the crime of unlawful [forcible rape] [oral copulation by force and threats] [forcible sodomy] [penetration of the [genital] [or] [anal] opening by a foreign object, substance, instrument or device by force, [violence] [fear] [or] [threats to retaliate]], criminal intent must exist at the time of the commission of the __________. There is no criminal intent if the defendant had a reasonable and good faith belief that the other person voluntarily consented to engage in [sexual intercourse] [oral copulation] [sodomy] [or] [penetration of the [genital] [anal] opening by a foreign object, substance, instrument, or device]. Therefore, a reasonable and good faith belief that there was voluntary consent is a defense to such a charge[.] [, unless the defendant thereafter became aware or reasonably should have been aware that the other person no longer consented to the sexual activity.]")

20Orange County criminal defense attorney John Murray represents clients accused of violating Penal Code 286, California's sodomy law, as well as all other California crimes throughout Newport Beach, Fullerton, Laguna Beach, Irvine, Santa Ana, Anaheim, and Westminster.

21CALJIC 10.67 -- Belief as to age; sodomy.  ("In the crime of unlawful [sodomy], general criminal intent must exist at the time of the commission of the act of [sodomy]. There is no general criminal intent if the defendant had a reasonable and good faith belief that the other person was 18 years of age or older at the time that person engaged in the act of [sodomy]. Therefore, a reasonable and good faith belief of such age is a defense to unlawful [sodomy]. If after consideration of all of the evidence, you have a reasonable doubt that the defendant had general criminal intent at the time of the act of [sodomy], you must find [him] [her] not guilty of the crime.")

As for Penal Code 286(c)(1), the courts may not accept mistake of age as a California legal defense.  See People v. Olsen (1984) 36 Cal.3d 638, 649.  ("It is true that at common law "an honest and reasonable belief in the existence of circumstances, which, if true, would make the act for which the person is indicted an innocent act, has always been held to be a good defense." ' " ( Hernandez, supra, 61 Cal.2d at pp. 535-536, 39 Cal.Rptr. 361, 393 P.2d 673, citation omitted.) However, it is evident that the public policy considerations in protecting children under the age of 14 from lewd or lascivious conduct are substantial-far more so than those associated with unlawful sexual intercourse. These strong public policies are reflected in several Penal Code statutes, and they compel a different rule as to section 288. The legislative purpose of section 288 would not be served by recognizing a defense of reasonable mistake of age. Thus, one who commits lewd or lascivious acts with a child, even with a good faith belief that the child is 14 years of age or older, does so at his or her peril.")  Using this reasoning, the courts may apply a similar analysis to Penal Code 286(c)(1).

22People v. Hughes (2002) 27 Cal.4th 287, 366.  ("...One cannot commit forcible sodomy without also committing battery, and, accordingly, battery is a necessarily included offense of forcible sodomy.")

23California Penal Code 242 PC -- Battery.  ("A battery is any willful and unlawful use of force or violence upon the person of another.")

24See California Penal Code 286 PC -- Sodomy, endnote 4, above.  ("(b)(1) Except as provided in Section 288, any person who participates in an act of sodomy with another person who is under 18 years of age shall be punished by imprisonment in the state prison, or in a county jail for not more than one year...(e) Any person who participates in an act of sodomy with any person of any age while confined in any state prison, as defined in Section 4504, or in any local detention facility, as defined in Section 6031.4, shall be punished by imprisonment in the state prison, or in a county jail for not more than one year...(h) Any person who commits an act of sodomy, 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, 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 not more than one year. Notwithstanding the existence of a conservatorship pursuant to 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.")

See also California Penal Code 672 PC -- Offenses for which no fine prescribed; fine authorized in addition to imprisonment.  ("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, in addition to the imprisonment prescribed.")

25See same.

26See California Penal Code 286(b)(2) PC -- Sodomy.  ("(b)(2) Except as provided in Section 288, any person over the age of 21 years who participates in an act of sodomy with another person who is under 16 years of age shall be guilty of a felony.")

See also California Penal Code 672 PC, endnote 23, above.

27See California Penal Code 286(d) PC -- Sodomy.  ("(d) Any person who, while voluntarily acting in concert with another person, either personally or aiding and abetting that other person, commits an act of sodomy when the act is accomplished against the victim's will by means of force or fear of immediate and unlawful bodily injury on the victim or another person or where 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 five, seven, or nine years.")

See also California Penal Code 672 PC, endnote 23, above.

28See California Penal Code 286 PC -- Sodomy, endnote 4, above.

29California Penal Code 290 PC -- Registration as a sex offender.  ("(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...[California Penal Code] 286...")

30California Penal Code 12202.7 PC - California's definition of great bodily injury.  ("(a) Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years. (b) Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony which causes the victim to become comatose due to brain injury or to suffer paralysis of a permanent nature, shall be punished by an additional and consecutive term of imprisonment in the state prison for five years. As used in this subdivision, "paralysis" means a major or complete loss of motor function resulting from injury to the nervous system or to a muscular mechanism. (c) Any person who personally inflicts great bodily injury on a person who is 70 years of age or older, other than an accomplice, in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for five years. (d) Any person who personally inflicts great bodily injury on a child under the age of five years in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for four, five, or six years. (e) Any person who personally inflicts great bodily injury under circumstances involving domestic violence in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three, four, or five years. As used in this subdivision, "domestic violence" has the meaning provided in subdivision (b) of Section 13700. (f) As used in this section, "great bodily injury" means a significant or substantial physical injury.")

31California Penal Code 1192.7 PC -- California serious felonies.  ("(c) As used in this section, [a California] "serious felony" means any of the following...(4) sodomy by force, violence, duress, menace, threat of great bodily injury, or fear of immediate and unlawful bodily injury on the victim or another person...")

See also California Penal Code 667.5 PC -- California violent felonies.  ("(c) For the purpose of this section, [a California] "violent felony" shall mean any of the following... (4) Sodomy as defined in subdivision (c) or (d) of [Penal Code] Section 286, [California's sodomy law].")

See also California Penal Code 667 PC -- Habitual criminals; enhancement of sentence; amendment of section (otherwise known as California's Three Strikes Law). ("(b) It is the intent of the Legislature in enacting subdivisions (b) to (i), inclusive, to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.")

32California Penal Code 288 PC -- Lewd acts with a minor.  ("(a) Any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.")

33Penal Code 261 PC, California's rape law defines a number of ways that the crime is committed, all of which are accomplished under the same conditions as Penal Code 286, California's sodomy law.  The difference is that rape involves sexual intercourse.

34California Penal Code 243a PC -- Child endangerment.  ("(a) Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years. (b) Any person who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health may be endangered, is guilty of a misdemeanor.")

35Penal Code 243.4 PC, California's sexual battery law, defines the variety of ways an individual can commit this offense.  Essentially, sexual battery takes is the nonconsensual touching of another person's intimate part for sexual gratification, sexual arousal, or sexual abuse.

36Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Mike Castillo for any questions relating to Nevada's criminal laws. Their Nevada law offices are located in Reno and Las Vegas.

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