Sodomy – defined as contact between a penis and anus – is legal among consenting adults. Penal Code § 286 PC is the California statute that makes sodomy a crime in certain situations, such as when an adult commits it:
- with a minor or
- by means of force, fear, or threats.
Examples of illegal acts
- having anal sex with a “victim” after threatening to stab them.
- engaging in an act of sodomy with a person 16 years of age.
- engaging in anal intercourse with a person while they are unconscious.
If you are facing sodomy charges, you can contest them with a legal defense. A few common defenses include showing that:
- you reasonably believed the “victim” was an adult,
- the alleged “victim” made a false allegation,
- the alleged “victim” consented to sodomy,
- you were misidentified,
- the police committed misconduct, and/or
- you were insane.
While a misdemeanor sodomy conviction can lead to custody in county jail for up to one year, a felony conviction can lead to a state prison term of over a decade.
Our California criminal defense attorneys will explain the following in this article:
- 1. How does California law define “Sodomy”?
- 2. Are there legal defenses?
- 3. What are the penalties?
- 4. Can a sodomy victim file a civil lawsuit?
- 5. Related offenses
- Additional resources
1. How does California law define “Sodomy”?
Penal Code 286 PC makes it a crime to engage in sodomy in certain situations. These situations include when the act of sodomy is:
- done with a minor,
- accomplished by means of force, violence, or fear,
- performed on a person who is not able to consent because of intoxication, a mental disorder, a physical disability, or unconsciousness, and
- done with a fellow jail or prison inmate.1
A few definitions here are helpful. For purposes of this statute, note the following:
- “sodomy” is any penetration, no matter how slight, of the anus of one person by the penis of another person. Ejaculation is not required.2
- an act is accomplished by “force” if a person uses enough physical force to overcome the other person’s will.3
- an act is accomplished by “fear” if the other person is actually and reasonably afraid.4
- to provide legal “consent,” a person must act freely and voluntarily and know the nature of the act.5
Sodomy does not include anal copulation between consenting adults. Moreover, in the 2003 decision Lawrence v Texas, the United States Supreme Court ruled that the systematic criminalization of sodomy is unconstitutional.6
2. Are there legal defenses?
Here at Shouse Law Group, we have represented literally thousands of people charged with sex crimes such as sodomy. In our experience, the following six defenses have proven very effective with judges, juries, and prosecutors.
2.1. You reasonably believed the “victim” was an adult
We use this defense when you are charged with engaging in sodomy with a minor. Helpful evidence includes videos or photos of the minor appearing and acting like an adult.
As long as a reasonable person would have the “good faith belief” that the minor was 18 or older, the charge should be dismissed.7
2.2. You were falsely accused
It is not uncommon for people to falsely accuse others of sex crimes out of anger, revenge, regret, or jealousy. When our clients are falsely accused, we investigate the accuser in search of evidence showing their motivation to lie.
In many cases, we can use the accuser’s own text messages, emails, and voicemails to impeach their credibility and show that you did nothing wrong. Then not only should the D.A. drop your case, the accuser could be prosecuted for filing a false police report.
2.3. The alleged victim consented
For you to be convicted of sodomy with another adult, the D.A. would have to prove beyond a reasonable doubt that the alleged victim did not consent. This can be very difficult since most of these cases lack any evidence one way or another.
We typically rely on the accuser’s own text messages and voicemails from right after the alleged sodomy. As long as they indicate nothing unlawful happened, the D.A. may be forced to drop the case for lack of proof.
Note that it is not a defense that you used a condom.
2.4. You were misidentified
Perhaps someone was unlawfully sodomized, but they mistakenly think you did it. We see this circumstance a lot when the victim was intoxicated on drugs or alcohol, and their memory is fuzzy about what happened.
In these “mistake of fact” cases, the truth is your best defense. We would compile all the circumstantial evidence available such as surveillance video, GPS records and eyewitness accounts to show the D.A. that they charged the wrong person.
2.5. The police committed misconduct
It is not unusual for police to mistakenly or intentionally violate your constitutional protections when working on a case. Common forms of police misconduct we see again and again are:
If we can show the judge that the police broke the law in your case, the judge may agree to disregard (“suppress“) all the evidence that the police illegally obtained. At that point, the D.A. may have no choice but to drop your case for lack of proof.
2.6. You were insane
In some cases, we may be able to argue that you were not guilty by reason of insanity. You are considered legally insane if you either:
- Did not understand the nature of your criminal act, or
- Did not understand that what you were doing was morally wrong.
With these cases, we rely heavily on your medical records and expert testimony to prove what your state of mind was at the time of the incident.
3. What are the penalties?
A California sodomy conviction triggers the requirement to register as a California sex offender. Judges may not grant probation, and the jail or prison sentence turns on the circumstances of the case:
Circumstances of the sodomy case
California jail/prison sentence
|With a minor under 18 (PC 286(b)(1))||Misdemeanor: 1 year |
Felony: 16 months, 2 years, 3 years
|Between an adult 21 or older with a minor under 16 (PC 286(b)(2))||Felony: 16 months, 2 years, 3 years|
|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 (PC 286(c)(2))|| |
Victim is 18 or older: 3, 6, or 8 years
Victim is 14 to 17: 7, 9, or 11 years
Victim is under 14: 9, 11, or 13 years
|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 you will execute the threat. (PC 286(c)(3) & (d)(1)) |
(“Retaliate means to kidnap or falsely imprison, or inflict extreme pain, serious bodily injury, or death.)
You acted alone: 3, 6, or 8 years
You acted with at least one other person: 5, 7, or 9 years
|You acted with another person, and the act was against the victim’s will by means of force or fear of immediate and unlawful bodily injury on the victim or another person (PC 286(d))|| |
Victim is 18 or older: 5, 7, or 9 years
Victim is 14 to 17: 7, 9, or 11 years
Victim is under 14: 10, 12, or 14 years
|While you are in jail or prison (PC 286(e) |
You and the victim are patients in a mental hospital, and the victim is incapable of consenting because of a mental disorder or developmental or physical disability, and you know this. (PC 286(h)
|Misdemeanor: 1 year |
Felony: 16 months, 2 years, 3 years
|Victim is either: ||Felony 3, 6, or 8 years|
In addition to incarceration, a sodomy conviction may also result in fines and victim restitution. You also may be disciplined by any professional associations you belong to.
4. Can a sodomy victim file a civil lawsuit?
Yes. People who believe they have been the victims of sex crimes have the right to bring a lawsuit for sexual assault damages in California. Compensatory damages that these parties can recover include:
In especially reprehensible cases of sexual abuse, victims may also recover punitive damages as an extra punishment for the offender.
Note that victims can even file a lawsuit if criminal charges were never filed or you are found “not guilty” at trial.
Note that victims can try to take a restraining order out against you at any time.
5. Related offenses
- Battery (PC 242)
- Lewd acts with a minor child (PC 288)
- Oral copulation with a minor (PC 287)
- Rape (PC 261)
- Sexual battery (PC 243.4)
- Statutory rape (PC 261.5)
For more in-depth information, refer to these scholarly articles:
- Timing Matters: Shifts in the Causal Determinants of Sodomy Law Decriminalization, 1961–1998 – Social Problems.
- The Miscegenation Analogy: Sodomy Law as Sex Discrimination – Yale Law Journal.
- Beyond the Enforcement Principle: Sodomy Laws, Social Norms, and Social Panoptics – California Law Review.
- Social Movement Policy Success: Decriminalizing State Sodomy Laws, 1969–1998 – Mobilization: An International Quarterly.
- Creating Criminals: The Injuries Inflicted by “Unenforced” Sodomy Laws – Harvard Civil Rights-Civil Liberties Law Review.
- California Penal Code 286 PC. See also, CALCRIM No. 1030 to 1037; People v. Barton (2020) 56 Cal.App.5th 496; and, People v. Hale (2012) 204 Cal.App.4th 961.
- CALCRIM No. 1030. See also People v. Singh (1923) 62 Cal.App.450.
- CALCRIM No. 1030. See also People v. Guido (2005) 125Cal.App.4th 566; and, People v. Griffın (2004) 33 Cal.4th 1015.
- CALCRIM No. 1030. See also People v. Iniguez (1994) 7 Cal.4th 847; and, People v. Reyes (1984) 153 Cal.App.3d 803.
- CALCRIM No. 1030. See also California Penal Code 261.6 and 261.7 PC.
- Lawrence v. Texas (2003) 539 U.S. 558.
- People v. Hughes (2002) 27 Cal.4th 287.
- See People v. Rowland (1992) 4 Cal.4th 238.