§ 289 PC – Forcible Sexual Penetration with a Foreign Object in California

California Penal Code § 289 PC prohibits forcible penetration of a person’s vagina or anus using a foreign object, and the victim did not – or could not – consent.

Violating 289 PC is a felony punishable by up to eight years in state prison. Plus you have to register as a sex offender.

In this article, our California criminal defense attorneys explain what you need to know about the law re. forcible sexual penetration with a foreign object.

• 1. Elements of 289 PC
• 2. Penalties
• 3. Defenses
• 4. Related Offenses
• Additional Resources

1. Elements of 289 PC

For you to be convicted of forcible sexual penetration with a foreign object, prosecutors generally have to prove beyond a reasonable doubt the following four elements of the California Criminal Jury Instruction (“CALCRIM”) 1046:

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.¹

We discuss in detail these elements below.

Sexual Penetration with a Foreign Object

“Sexual penetration” is 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, or
• Causing the victim to penetrate, however slightly, the genital or anal opening of you or a third person, or
• Causing the victim to penetrate, however slightly, their own genital or anal opening.²

Forcible penetration with an object like a beer bottle is prohibited by Penal Code 289 PC.

“With a foreign object” can mean virtually any object, including a body part other than a sexual organ.³ (Penetration with a sexual organ is sexual intercourse and, when done without consent, will lead to charges for rape under 261 PC.)

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.⁴

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.⁵

Remember that the purpose of the forcible penetration must be either:

• sexual arousal, or
• sexual gratification, for
• sexual abuse, which means causing pain, injury, or discomfort.⁶

Lack of Consent

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

• act freely and voluntarily⁷ and
• understand the nature of their act.⁸

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

• You and the victim were dating or had dated, or
• You and the victim were or had been married, or
• The victim requested that you use a condom.⁹

Forcible Penetration

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

• Force—meaning just enough physical force to overcome the other person’s will; or
• Violence; or
• Duress—meaning a direct or implied threat of force, violence, danger, hardship, or retribution that would cause a reasonable person to do something they would not otherwise do; or
• Menace—meaning a threat, statement, or act showing an intent to injure someone; or
• A threat of immediate and unlawful bodily injury; or
• 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.¹⁰

People who are intoxicated or unconscious or have certain disabilities are unable to give consent.

When the Victim Is Disabled

You can be guilty of sexual penetration with a foreign object without any force or duress if:

1. The victim has a mental disorder or developmental or physical disability that prevents them from understanding the nature and possible consequences of the act, and
2. You know or reasonably should have known that the other person’s disorder or disability would prevent them from legally consenting.¹¹

When the Victim Is Unconscious

You may also be convicted of violating 289 PC 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 they are unable to resist for this reason.¹²

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:

• They are unconscious or asleep, or
• They are unaware that the act is occurring, or
• They are not aware of the essential characteristics of the act because you tricked, lied to, or concealed information from them.¹³

When the Victim Is Intoxicated

Finally, you may be guilty under 289 PC 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 they have consumed drugs, alcohol, or another intoxicating substance, and
2. You knew or reasonably should have known that they could not consent because of this.¹⁴

A person is considered too intoxicated to consent if they are unable to understand and weigh:

• The physical and moral nature of the sexual penetration and/or
• Its probable consequences.¹⁵

The punishment for forcible penetration with a foreign object is harsher if the victim is a minor.

2. Penalties

Forcible sexual penetration with a foreign object is a California felony.¹⁶ The potential penalties of violating 289 PC include:

• Felony (formal) probation,
• 3, 6, or 8 years in California State Prison, and/or
• A fine of up to $10,000.¹⁷

If the alleged victim is a minor (under 18 years old) when the offense occurs, the potential prison sentence increases to:

• 6, 8, or 10 years in prison if the victim is at least 14, or
• 8, 10, or 12 years in prison if the victim is under 14.¹⁸

Sex Offender Registration Requirement

A conviction of forcible sexual penetration with a foreign object also requires you to register as a sex offender in California.¹⁹ Whether you register as tier one, two, or three depends on the facts of your case.

Tier III Sex Registration

You must register for life as a Tier III sex offender if the 289 PC violation involved either:

• Penetration by force or duress, or
• A victim under 14 and more than 10 years younger than you, or
• A victim too intoxicated to consent, or
• An unconscious victim.

Tier II Sex Registration

You must register for 20 years as a Tier II sex offender if the 289 PC violation was a felony, and:

• the act was accomplished against the victim’s will by threatening to retaliate in the future against the victim or any other person, or
• the victim was at the time incapable of giving consent because of a mental disorder or developmental or physical disability.

Tier I Sex Registration

You must register for 10 years as a Tier I sex offender if the 289 PC violation was:

• a misdemeanor or
• a felony covered under 289 PC subsections c, f, g, h, or i.

Note that the judge is not required to impose registration requirements in 289(h) PC and 289(i) PC cases when:

• you are within 10 years of age of the child, and
• the child was at least 14 years old.²⁰

A common defense to sex crime charges is false allegations.

3. Defenses

Here at Shouse Law Group, we have represented literally thousands of people charged with sex crimes such as forcible penetration with a foreign object. In our experience, the following three defenses have proven very effective with California prosecutors, judges, and juries.

1) The Alleged “Victim” Consented

In many of the 289 PC cases we have seen, there is a lot of ambiguity about whether the alleged “victim” actually consented. Therefore, lack of consent can be very hard for the D.A. to prove beyond a reasonable doubt since cases often come down to competing “he said/she said” allegations.²¹

We always look at the accuser’s text messages and voicemails from the time of the alleged assault. If they indicate nothing was wrong or that they actually did consent, the D.A. may have to drop the charge for lack of proof.²²

2) You Reasonably Believed There Was Consent

Many jury members can relate to a situation in which there is ambiguity about a sexual partner’s consent to a particular sexual act. That you actually and reasonably believed your partner consented is therefore one of our most powerful defenses to forcible sexual penetration charges.²³

Similar to the previous defense, we typically look at your text message and DM exchanges to show what each party’s state of mind was. As long as a reasonable person in your situation would have believed there was consent, then the D.A. should dismiss the case.

3) You Were Falsely Accused

We see cases all the time where an accuser levies false allegations of sexual penetration by force or fear because they feel angry, vengeful, or regretful. In many cases, the accuser is a current or former sex partner, but they can also be a family member or friend who has a grudge against you.

The best way we fight false allegations is to rely on alibis, surveillance video, and other physical evidence to show that you simply could not have committed this crime. Once prosecutors see their case is too weak to continue, they may agree to drop it.

The majority of criminal cases resolve with a plea bargain and not a trial.

4. Related Offenses

Oral Copulation by Force or Fear – 287 PC

Oral copulation by force or fear is almost identical to 289 PC, except that the criminal sex act is oral sex, not sexual penetration.

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

Rape – 261 PC

Rape is nonconsensual sexual intercourse accomplished by means of

• threats,
• force, or
• fraud.

Rape is usually a California felony carrying a potential state prison sentence of three, six, or eight years.

Sexual Battery – 243.4 PC

Sexual battery/sexual assault is the touching of another person’s intimate parts without their consent, for purposes of

• sexual gratification,
• arousal, or
• abuse.

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

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.

A conviction of forcible sexual penetration with a foreign object usually requires sex offender registration.

Additional Resources

For additional information about California sexual assault laws and help for victims, refer to the following:

• Sexual Violence Resources – List by the California Attorney General of government agencies and other organizations providing information and support.
• California Coalition Against Sexual Assault (CALCASA) – Leading state advocacy group supporting victims and prevention. Key resource for education.
• California Victim Compensation Program – Provides financial assistance to victims of violent crime including sexual assault. State program.
• RAINN – National sexual assault hotline providing free, confidential support for survivors 24/7.
• Victims of Crime Resource Center – Provides information, assistance and referrals for victims of all types of crimes in California.

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