Updated April 6, 2020
Penal Code 286 PC is the California law that makes sodomy a crime if it happens without the other party’s consent, or if it takes place with a minor. 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Anal copulation used to be criminalized by most states, including California.2 But the legislature has since repealed all such laws.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 286 PC, California’s sodomy law, still punishes “unlawful acts of sodomy.” These include
- forcing someone to have sodomy against his/her will; OR
- acts of sodomy involving minor children.4
Penalties for unlawful sodomy in California
The punishment for unlawful sodomy in California depends on the specific act charged. Most unlawful acts of sodomy can be charged as a California “wobbler” offense. A “wobbler” is a crime that can be charged as a misdemeanor or a felony, in the prosecutor’s discretion.
If convicted of sodomy as a misdemeanor, a defendant faces up to:
- one year in county jail, and/or
- a $1,000 fine.
As a felony, sodomy can be punished by up to:
- 16 months, or two or three years in the California State Prison, and/or
- a maximum $10,000 fine.
Additionally, regardless of whether charged as a misdemeanor or a felony, a conviction requires the defendant to register as a California sex offender.
What are some legal defenses to sodomy?
As with any California sex crime, prosecutors can make mistakes. While not a complete list, common defenses to charges of sodomy include:
- The alleged victim made a false allegation,
- The alleged victim or a witness engaged in mistaken identification of the perpetrator,
- The evidence was faulty,
- A confession was coerced, or
- Evidence was discovered as the result of an illegal search and seizure.
To help you better understand the law, our California criminal defense attorneys will discuss:
- 1. When is sodomy a crime in California?
- 2. How can a defense attorney help?
- 3. What happens if a person is convicted under 286 PC?
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
286 PC punishes a variety of conduct that California’s sodomy law declares to be illegal. This includes acts of sodomy that you:
- 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),
- accomplish through means of force, violence, or fear, in violation of Penal Code 286(c)(2) or Penal Code 286(c)(3), and/or
- 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):
- 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),
- 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.
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:
- 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,
- The fact that the alleged victim asks you to wear a condom does not by itself constitute consent10, and
- 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.
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:
- lying about what sodomy entails,
- 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
- 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
- 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.
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 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.
There are a dozen ways to violate 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
- the exact circumstances of the case, and
- 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:
- informal (otherwise known as “summary”) probation,
- up to one year in county jail, and
- a maximum $1,000 fine.24
If convicted of any of these offenses as a felony, you face:
- formal probation,
- 16 months, or two or three years in the California State Prison, and
- a maximum $10,000 fine.25
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:
- 16 months, or two or three years in the state prison, and
- the other felony penalties listed above.26
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:
- five, seven, or nine years in the state prison, and
- the other felony penalties listed above.27
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:
- three, six, or eight years in the state prison, and
- the other felony penalties listed above.28
Additional Points about Sentencing Under California Sodomy Law
There are four final important points to note about sentencing under Penal Code 286 PC.
- Both misdemeanor and felony sodomy convictions subject you to register as a sex offender under California Penal Code 290 PC. People convicted of misdemeanor sodomy and some felony cases with no force are tier-one offenders who have to register for a minimum of 10 years. People convicted of sodomy with a person who was incapable because of a physical or mental disability…or who were convicted of sodomy with a with a minor under 14 years of age and more than 10 years younger than you (and there is no force)…are tier two offenders who have to register for a minimum of 20 years. Otherwise, people convicted of felony sodomy (including sodomy by force) are tier three offenders who have to register for life.29
- You may receive an additional and consecutive three- to six-year prison sentence if the alleged victim suffers a “great bodily injury”.30
- 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
- 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 non-consensual 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).
4. Can the victim of sodomy bring a civil lawsuit?
In especially reprehensible cases, they may also be able to recover punitive damages as an extra punishment of the perpetrator.
Is a “guilty” verdict required in order for a victim to sue?
No. Victims can sue even if criminal charges are never filed or the defendant is found “not guilty” at trial.
In a civil lawsuit, the defendant does not have to be guilty “beyond a reasonable doubt.” Rather the plaintiff needs to prove liability by a “preponderance of the evidence.”
A preponderance of the evidence simply means that nine of the 12 jurors think it is more likely than not that the defendant committed an unlawful act of sodomy against the plaintiff.
For more information, we invite you to visit our page on Lawsuits by Crime Victims in California.
Call us for help…
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 also help if you have been the victim of sodomy or another wrongful sexual act and need compensation through a sexual assault lawsuit or victim restitution.
To speak to a caring lawyer, call us 24/7 or complete the form on this page.
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.
We can also help if you need legal representation in connection with Nevada’s sodomy laws.
- California 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.”)
- See George Painter, The History of Sodomy Laws in the United States.
- Lawrence v. Texas (2003) 539 U.S. 558. In a 6-3 ruling, the Supreme Court struck down a Texas sodomy law. The court ruled that private sexual acts between consenting adults are privacy rights protected by the Fourteenth Amendment. Therefore any state law, such as the Texas sodomy law, that criminalized private consensual acts of sodomy among adults was declared unconstitutional.
- See same.
- Our 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.
- People 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.”)
- See California Jury Instructions -- CALCRIM 1030 and CALCRIM 1092.
- CALJIC 1.23.1 — Consent to sodomy.
- California 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…”)
- California 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.”)
- See 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.”)
- CALJIC 10.20 — Unlawful sodomy by force or threats.
- “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.
- This means a threat, declaration, or act that shows an intention to inflict an injury upon another person — for example, revealing an otherwise concealed weapon.
- The 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.
- Such as a threat to kidnap, falsely imprison, or inflict serious pain, injury, or death upon the alleged victim or another person.
- People v. Hurd (1970) 5 Cal.App.3d 865, 875 (overruled on other grounds). Evidence Code 1103 EC – Rape shield law.
- CALJIC 10.65
- Orange 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.
- CALJIC 10.67
- People 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.”)
- California Penal Code 242 PC — Battery. (“A battery is any willful and unlawful use of force or violence upon the person of another.”)
- See California Penal Code 286
- See same.
- See 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.
- See California Penal Code 286(d)See also California Penal Code 672 PC, endnote 23, above.
- See California Penal Code 286 PC — Sodomy, endnote 4, above.
- California 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…”)
- California Penal Code 12202.7 PC -- California’s definition of great bodily injury.
- California 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.”)
- California Penal Code 288 PC — Lewd acts with a minor.
- Penal 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.
- California Penal Code 243a PC — Child endangerment.
- Penal Code 243.4 PC, California’s sexual battery law, defines the variety of ways an individual can commit this offense. Essentially, sexual battery is the nonconsensual touching of another person’s intimate part for sexual gratification, sexual arousal, or sexual abuse.
- Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Neil Shouse for any questions relating to Nevada’s criminal laws. Their Nevada law offices are located in Reno and Las Vegas.