Penal Code 289.6 PC is the California statute that prohibits certain people from engaging in sexual activity with an inmate. Those people include:
- Health facility staff, and contractors,
- Prison guards employed by public or private prisons,
- Independent contractors or volunteers for public or private prisons,
- Employees or contractors with the Department of Corrections and Rehabilitation,
- Police officers, and
- Parole officers.
- Prison inmates,
- Inmates at juvenile facilities,
- People confined in a health facility, including a mental institution, and
It is not a defense that the inmate consented to the sex.1
1. How is “inmate” defined?
Under Penal Code 289.6, an inmate is anyone who is confined in a detention facility.
The definition of a detention facility is broad. It includes:
- Correctional facilities for adults or juveniles, like a prison, camp, or jail,
- A private building or facility used to confine adults and minors,
- An interrogation room, including those in a police department building,
- Vehicles used to transport people who are in confinement, including people who have been arrested but not yet booked, and
- Holding cells in or near a courthouse, meant for defendants making a court appearance.2
1.1. What is considered “sexual activity” under PC 289.6?
Sexual activity is not restricted to intercourse. It includes:
- Sexual intercourse,
- Oral copulation,
- Any type of sexual penetration, including with a foreign object,
- Rubbing or touching someone else’s sexual organs, including their breasts, for sexual gratification, and
- Rubbing or touching him or herself in the presence of another person for sexual gratification.3
2. What are some examples of illegal sex with an inmate?
- A female parole officer and her male parolee have a sexual relationship,
- A prison guard anally penetrates an inmate with a baton as a form of punishment, and
- A detective grabs the genitals of a suspect he is interrogating.
3. Are there related offenses?
Some criminal offenses are frequently filed along with this section. They include:
- Bringing contraband into a correctional facility,
- Sexual battery (California Penal Code 243.4), and
- Rape (California Penal Code 261).
4. What are some legal defenses?
People accused of having sex with an inmate have several legal defenses they can raise. The most common are:
- The accusations are false or have an ulterior motive, and
- The sex happened during a conjugal visit, a lawful search, or during a medical examination.4
The inmate’s consent to sexual activity is not a defense. This makes 289.6 PC different from other sex crimes.
Typically, sexual activity between consenting adults is not illegal. This statute makes it illegal because there is a huge power imbalance between inmates and their supervisors. This power imbalance makes any consent that has been given problematic.
5. What are the penalties?
The penalties for having sex with an inmate depend on several factors, including:
- The age of the inmate,
- The type of sexual activity,
- Prior convictions for having sex with an inmate, and
- Where an inmate was confined.
If the inmate was confined in a health facility, the charge is a misdemeanor. Convictions carry up to:
- 1 year in jail, and
- $1,000 in fines.5
If the inmate was confined in a detention facility or is supervised by a corrections officer, the charge is a misdemeanor if it involved sexual touching.6 If it involved penetration of any kind, including oral copulation, it is a felony. Convictions carry up to:
- 1 year in jail, and
- $10,000 in fines.7
Anytime a defendant already has a conviction under Penal Code 289.6, a subsequent charge is a felony.8
If the inmate was under the age of consent, the actor can face additional charges. These can include statutory rape, which is a serious felony.
5.1. Employment repercussions
Anyone who works for the Department of Corrections and Rehabilitation faces employment repercussions of a conviction. If they are convicted of a felony under this section, they will be terminated from their job. They will be ineligible to rehired or reinstated in the Department.9
- California Penal Code 289.6(e).
- California Penal Code 289.6(c).
- California Penal Code 289.6(d).
- California Penal Code 289.6(f).
- California Penal Code 289.6(g).
- California Penal Code 289.6(h).
- California Penal Code 289.6(i).
- California Penal Code 289.6(j).