Penal Code 289.6 PC is the California statute that prohibits detention facility staff and contractors from engaging in sexual activity with an inmate. The offense can be charged as a misdemeanor or a felony, and is punishable by up to 3 years in jail or prison.
The persons prohibited from sexual activity with an inmate 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.
Inmates include:
- Prison inmates,
- Inmates at juvenile facilities,
- People confined in a health facility, including a mental institution, and
- Parolees.
It is not a defense that the inmate consented to the sex.1
Penal Code 289.6 prohibits detention center staff from engaging in sexual activity with an inmate.
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
What is considered “sexual activity”?
Sexual activity is not restricted to intercourse. It includes:
- Sexual intercourse,
- Sodomy,
- 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).
An experienced attorney can be crucial to the outcome of your case.
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 for a Penal Code 289.6 conviction?
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:
- 3 years in jail or prison, 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.
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 be rehired or reinstated in the Department.9
Legal References:
- California Penal Code 289.6. The full language of the code section reads:
(a) (1) An employee or officer of a public entity health facility, or an employee, officer, or agent of a private person or entity that provides a health facility or staff for a health facility under contract with a public entity, who engages in sexual activity with a consenting adult who is confined in a health facility is guilty of a public offense. As used in this paragraph, “health facility” means a health facility as defined in subdivisions (b), (e), (g), (h), and (j) of, and subparagraph (C) of paragraph (2) of subdivision (i) of, Section 1250 of the Health and Safety Code, in which the victim has been confined involuntarily. (2) An employee or officer of a public entity detention facility, or an employee, officer, agent of a private person or entity that provides a detention facility or staff for a detention facility, a person or agent of a public or private entity under contract with a detention facility, a volunteer of a private or public entity detention facility, or a peace officer who engages in sexual activity with a consenting adult who is confined in a detention facility is guilty of a public offense. (3) An employee with a department, board, or authority under the Department of Corrections and Rehabilitation or a facility under contract with a department, board, or authority under the Department of Corrections and Rehabilitation, who, during the course of his or her employment directly provides treatment, care, control, or supervision of inmates, wards, or parolees, and who engages in sexual activity with a consenting adult who is an inmate, ward, or parolee, is guilty of a public offense.(b) As used in this section, the term “public entity” means the state, federal government, a city, a county, a city and county, a joint county jail district, or any entity created as a result of a joint powers agreement between two or more public entities.
(c) As used in this section, the term “detention facility” means:
(1) A prison, jail, camp, or other correctional facility used for the confinement of adults or both adults and minors.
(2) A building or facility used for the confinement of adults or adults and minors pursuant to a contract with a public entity.
(3) A room that is used for holding persons for interviews, interrogations, or investigations and that is separate from a jail or located in the administrative area of a law enforcement facility.
(4) A vehicle used to transport confined persons during their period of confinement, including transporting a person after he or she has been arrested but has not been booked.
(5) A court holding facility located within or adjacent to a court building that is used for the confinement of persons for the purpose of court appearances.
(d) As used in this section, “sexual activity” means:
(1) Sexual intercourse.
(2) Sodomy, as defined in subdivision (a) of Section 286.
(3) Oral copulation, as defined in subdivision (a) of Section 287 or former Section 288a.
(4) Sexual penetration, as defined in subdivision (k) of Section 289.
(5) The rubbing or touching of the breasts or sexual organs of another, or of oneself in the presence of and with knowledge of another, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of oneself or another.
(e) Consent by a confined person or parolee to sexual activity proscribed by this section is not a defense to a criminal prosecution for violation of this section.
(f) This section does not apply to sexual activity between consenting adults that occurs during an overnight conjugal visit that takes place pursuant to a court order or with the written approval of an authorized representative of the public entity that operates or contracts for the operation of the detention facility where the conjugal visit takes place, to physical contact or penetration made pursuant to a lawful search, or bona fide medical examinations or treatments, including clinical treatments.
(g) Any violation of paragraph (1) of subdivision (a), or a violation of paragraph (2) or (3) of subdivision (a) as described in paragraph (5) of subdivision (d), is a misdemeanor.
(h) Any violation of paragraph (2) or (3) of subdivision (a), as described in paragraph (1), (2), (3), or (4) of subdivision (d), shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison, or by a fine of not more than ten thousand dollars ($10,000) or by both that fine and imprisonment.
(i) Any person previously convicted of a violation of this section shall, upon a subsequent violation, be guilty of a felony.
(j) Anyone who is convicted of a felony violation of this section who is employed by a department, board, or authority within the Department of Corrections and Rehabilitation shall be terminated in accordance with the State Civil Service Act (Part 2 (commencing with Section 18500) of Division 5 of Title 2 of the Government Code). Anyone who has been convicted of a felony violation of this section shall not be eligible to be hired or reinstated by a department, board, or authority within the Department of Corrections and Rehabilitation.
(Amended by Stats. 2018, Ch. 423, Sec. 50. (SB 1494) Effective January 1, 2019.)
- California Penal Code 289.6(c).
- California Penal Code 289.6(d).
- California Penal Code 289.6(f).
- California Penal Code 289.6(g).
- Same
- California Penal Code 289.6(h).
- California Penal Code 289.6(i).
- California Penal Code 289.6(j).