Penal Code 286 PC – California “Sodomy” Laws

Updated January 26, 2022

Penal Code 286 PC is the California statute that makes sodomy a crime in certain situations, such as when an adult commits it

1. with a minor or
2. by means of force, fear, or threats.

The legal definition of sodomy is sexual contact that takes place between the penis of one person and the anus of another. A violation of this law is a serious offense that can lead to years in state prison.

Note that, today, anal copulation between consenting adults is perfectly legal in California and throughout the United States. It only becomes a crime if it is done with a minor or without the other party’s consent.

Examples of illegal acts

• having anal sex with a “victim” after threatening to stab the person.
• engaging in an act of sodomy with a person 16 years of age.
• engaging in anal intercourse with a person while he/she is unconscious.

Defenses

People accused of sodomy charges have the right to contest them with a legal defense. A few common defenses include defendants showing that:

• they reasonably believed the “victim” was an adult,
• the alleged “victim” made a false allegation, and/or
• the alleged “victim” consented to sodomy.

Penalties

Depending on the specific facts of a case, prosecutors can charge a violation of California Penal Code Section 286 as either a misdemeanor or a felony.

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?
  • 2.1. Belief that the “victim” was an adult
  • 2.2. False allegations
  • 2.3. Consent
• 3. What are the penalties?
• 4. Can a sodomy victim file a civil lawsuit?
• 5. Are there related offenses?
  • 5.1. Rape – PC 261
  • 5.2. Lewd acts with a minor child – PC 288i
  • 5.3. Sexual battery – PC 243.4

1. How does California law define “Sodomy”?

Penal Code 286 PC makes it a crime for people 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

Note also that the crime of sodomy does not include anal copulation between consenting adults. This is legal in California and throughout the U.S. 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?

Criminal defense lawyers draw upon several legal strategies to help clients challenge California sodomy charges. Three common ones involve an attorney showing that:

1. the defendant believed the “victim” was an adult.
2. the alleged “victim” made a false allegation.
3. the alleged “victim” consented.

2.1. Belief that the “victim” was an adult

This defense is used when an accused is charged with engaging in sodomy with a minor. People can always challenge such allegations by asserting that they believed the alleged “victim” was an adult. However, to work, this belief must be reasonable under the circumstances.⁷

2.2. False allegations

Defendants can always challenge a sodomy charge by showing that it is based on false allegations. As Orange County criminal defense attorney John Murray explains:

“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 and sexual acts. 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.”

2.3. Consent

Recall that consensual sodomy between adults is legal throughout the U.S. This means an accused can always show that he/she engaged in sodomy with another adult, and that party consented to the sexual conduct.

3. What are the penalties?

Some sodomy offenses are wobblers. A wobbler is a crime that a prosecutor can charge as either a misdemeanor or a felony depending on the facts of the case and the defendant’s criminal history.

Engaging in sodomy is a wobbler when it is done with:

• a minor in violation of Penal Code 286b1, or
• a fellow jail or prison inmate in violation of Penal Code 286e.

In these cases, if a prosecutor charges the crime as a misdemeanor, it is punishable by up to one year in county jail.⁸

If charged as a felony, the charge is punishable by a prison sentence of up to three years.⁹

Note that all other violations of PC 286 are straight felonies that are punishable by years in state prison. The exact amount of prison time imposed depends on the facts of the case. Under some circumstances, sodomy can lead to a prison term of over a decade.¹⁰

Additionally, regardless of whether charged as a misdemeanor or a felony, a sodomy conviction typically requires the defendant to register as a California sex offender.

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:

• medical bills,
• psychological counseling,
• stress, anxiety, and pain and suffering, and
• lost wages.

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 the defendant is found “not guilty” at trial.

5. Are there related offenses?

There are three offenses related to criminal sodomy. These are:

1. rape – PC 261,
2. lewd acts with a minor child – PC 288i, and
3. sexual battery – PC 243.4

5.1. Rape – PC 261

Per Penal Code 261, rape is the crime where people use force, threats, or fraud to have non-consensual sexual intercourse with another person. For purposes of this statute, “sexual intercourse” means any sexual penetration, no matter how slight, of the vagina or genitalia by the penis.

Unlike sodomy, rape is always charged as a felony. The crime is punishable by a state prison term of up to eight years. A defendant can receive a longer prison term if the alleged victim suffered great bodily injury in the commission of the offense.

5.2. Lewd acts with a minor child – PC 288i

Per Penal Code 288, lewd acts with a minor child is the crime where people commit a lewd act on a minor child under the age of 14 and inflict bodily harm on the victim in doing so.

As with a sodomy charge, a defendant can challenge a lewd act charge by showing that the alleged “victim” made a false allegation.

5.3. Sexual battery – PC 243.4

Under Penal Code 243.4, sexual battery is the crime where people:

1. make sexual contact with someone or touch the intimate parts of another person, and
2. do so against the person’s will and for the purposes of sexual gratification, arousal, or abuse.

As with some sodomy cases, a prosecutor can charge sexual battery as either a misdemeanor or a felony.

For additional help…

For additional guidance or to discuss your case with a criminal defense lawyer, we invite you to contact our law firm at the Shouse Law Group. Our attorneys provide both free consultations and legal advice you can trust.

Our defense lawyers also represent clients throughout California, including those in Los Angeles, Glendale, Riverside, San Bernardino, San Diego, Newport Beach, Pasadena, Pomona, Rancho Cucamonga, Torrance, and Orange County.

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