§ 289 PC – Forcible Sexual Penetration w/a Foreign Object

California Penal Code § 289 sets forth the crime of forcible penetration of a victim’s vagina or anus using a foreign object. This offense is a felony punishable by up to 8 years in state prison.

Forcible penetration is generally defined as:

1. penetrating the vagina or anus of a person,
2. using a foreign object,
3. without consent, and
4. by means of force or threats of force.

To help you better understand the law, our California criminal defense attorneys will address the following:

• 1. Forcible Penetration Defined
• 2. Penalties
• 3. Defenses
• 4. Related Offenses
• Additional Resources

1. Forcible Penetration Defined

There are several distinct legal definitions of forcible penetration with a foreign object, depending on the subsection of PC 289 under which you are charged.

By force or fear

The basic legal definition of sexual penetration by force or fear has the following “elements of the crime”:

1. You committed an act of sexual penetration with another person,
2. That penetration was accomplished using a foreign object, substance, instrument, or device, or an unknown object,
3. The other person did not consent to the penetration, and
4. You accomplished the penetration through force, violence, duress, menace, fear of immediate and unlawful bodily injury, or future threats of bodily harm.⁷

Let’s look at some of these elements better to get a clearer sense of their meaning.

Sexual penetration with a foreign object

Sexual penetration is defined under California law as any of the following, when done for the purpose of sexual abuse, arousal, or gratification:

• Any penetration, however slight, of the genital or anal opening of the victim,
• Causing the victim to penetrate, however slightly, the genital or anal opening of you or a third person, or
• Causing the victim to penetrate, however slightly, their own genital or anal opening.⁸

“With a foreign object” can mean virtually any object, including a body part other than a sexual organ.⁹ (Penetration with a sexual organ is sexual intercourse and, when done without consent, will lead to charges for Penal Code 261 rape.)

If the person being penetrated is female, then sexual penetration can occur even if her actual vagina is not penetrated. Penetration of the “labia majora” (outer lips of the female genitalia) is sufficient.¹⁰

Example: While watching television with her five-year-old niece, Joanne puts her hand down the girl’s pants and inserts her fingers into the girl’s labia (but not actually into her vagina). Joanne has committed sexual penetration by force or fear.¹¹

Note that the legal definition of the crime is met when you are acting for purposes of sexual arousal or gratification, OR for purposes of sexual abuse. “Sexual abuse” means penetration for the purpose of causing pain, injury, or discomfort.¹²

Lack of consent

In order to consent to sexual penetration, a person must both

• act freely and voluntarily,¹³ and
• understand the nature of their act.¹⁴

The following facts, by themselves, will not be enough to prove that the alleged victim actually consented to sexual penetration:

• You and the victim were dating or had dated,
• You and the victim were or had been married, or
• The victim requested that you use a condom.¹⁵

Forcible penetration

To be guilty of this form of forcible sexual penetration, you must have accomplished the penetration through one of the following:

1. Force—meaning just enough physical force to overcome the other person’s will,
2. Violence,
3. Duress—meaning a direct or implied threat of force, violence, danger, hardship, or retribution that would cause a reasonable person to do something they would not otherwise do,
4. Menace—meaning a threat, statement, or act showing an intent to injure someone,
5. A threat of immediate and unlawful bodily injury, and/or
6. A threat to retaliate if the victim does not submit—by kidnapping, unlawfully restraining or confining, or inflicting extreme pain, serious bodily injury, or death on the victim or a third party.¹⁶

Of a disabled person

You can be guilty of sexual penetration with a foreign object without any force or duress if:

1. The victim has a mental disorder or developmental or physical disability that prevents them from understanding the nature and possible consequences of the act, and
2. You know or reasonably should have known that the other person’s disorder or disability would prevent them from legally consenting.¹⁷

Of an unconscious person

You may also be convicted of violating Penal Code 289 if:

1. You engage in sexual penetration with a foreign object with someone who is unconscious of the nature of the act, and
2. You know that they are unable to resist for this reason.¹⁸

The “victim” does not have to literally be unconscious for this section of the law to apply. “Unconscious of the nature of the act” can mean that:

• They are unconscious or asleep,
• They are unaware that the act is occurring, or
• They are not aware of the essential characteristics of the act because you tricked, lied to, or concealed information from them.¹⁹

Of an intoxicated person

Finally, you may be guilty under Penal Code 289 if you commit an act of sexual penetration with a foreign object, and both of the following are true:

1. The other person is incapable of resisting because they have consumed drugs, alcohol, or another intoxicating substance, and
2. You knew or reasonably should have known that they could not consent because of this.²⁰

A person is considered too intoxicated to consent if they are unable to understand and weigh:

• The physical and moral nature of the sexual penetration, and/or
• Its probable consequences.²¹

2. Penalties

Penal Code 289 forcible sexual penetration with a foreign object is a California felony.²² The potential penalties include:

• Felony (formal) probation,
• 3, 6, or 8 years in California state prison, and/or
• A fine of up to $10,000.²³

If the alleged victim is under 18 when the offense occurs, the potential prison sentence increases to:

• 6, 8, or 10 years in prison if they are 14 years of age or older, or
• 8, 10, or 12 years in prison if they are under 14.²⁴

Sex offender registration requirement

A Penal Code 289 PC conviction also requires you to register as a sex offender in California.²⁵ Whether you register as tier one, two, or three depends on the facts of your case:

Sex offender tier	PC 289 case
Tier one (you must register for at least 10 years)	Misdemeanor and some felony cases, specifically, subsections c, f, g, h, and i of PC 289 The judge is not required to impose registration requirements in PC 289(h) and (i) cases when you are within 10 years of age of the child and the child was at least 14 years old.
Tier two (you must register for 20 years)	Felonies when the act is accomplished against the victim’s will by threatening to retaliate in the future against the victim or any other person, or the victim is at the time incapable of giving consent  because of a mental disorder or developmental or physical disability.
Tier three (you must register for life)	Penetration by force or duress, or when the victim is under 14 and more than 10 years younger than you, or the victim is too intoxicated to consent, or the victim is unconscious.26

3. Defenses

Here at Shouse Law Group, we have represented literally thousands of people charged with sex crimes such as forcible penetration with a foreign object. In our experience, the following three defenses have proven very effective with prosecutors, judges, and juries.

The alleged “victim” actually consented

In many of the Penal Code 289 cases we have seen, there is a lot of ambiguity about whether the alleged “victim” actually consented. Therefore, lack of consent can be very hard for the D.A. to prove beyond a reasonable doubt since cases often come down to competing “he said/she said” allegations.²⁷

We always look at the accuser’s text messages and voicemails from the time of the alleged assault. If they indicate nothing was wrong or that they actually did consent, the D.A. may have to drop the charge for lack of proof.²⁸

You reasonably believed that there was consent

Many jury members can relate to a situation in which there is ambiguity about a sexual partner’s consent to a particular sexual act. That you actually and reasonably believed your partner consented is therefore one of our most powerful defenses to forcible sexual penetration charges.²⁹

Similar to the previous defense, we typically look at your text message and DM exchanges to show what each party’s state of mind was. As long as a reasonable person in your situation would have believed there was consent, then the D.A. should dismiss the case.

You were falsely accused

We see cases all the time where an accuser levies false allegations of sexual penetration by force or fear because they feel angry, vengeful, or regretful. In many cases, the accuser is a current or former sex partner, but they can also be a family member or friend who has a grudge against you.

The best way we fight false allegations is to rely on alibis, surveillance video, and other physical evidence to show that you simply could not have committed this crime. Once prosecutors see their case is too weak to continue, they may agree to drop it.

4. Related offenses

Penal Code 287 – Oral Copulation by Force or Fear

Penal Code 287 oral copulation by force or fear is almost identical to Penal Code 289, except that the criminal sex act is oral sex, not sexual penetration.³⁰

Oral copulation by force or fear is also a California felony. The potential prison sentence is the same as that for forcible sexual penetration—3, 6, or 8 years in most cases, but up to 12 years if the victim is a minor.³¹

Penal Code 261 – Rape

Penal Code 261 PC rape is defined as nonconsensual sexual intercourse accomplished by means of

• threats,
• force, or
• fraud.³²

California rape is usually a felony carrying a potential state prison sentence of 3, 6, or 8 years.³³

Penal Code 243.4 – Sexual Battery

Penal Code 243.4 PC sexual battery/sexual assault is the touching of another person’s intimate parts without their consent, for purposes of

• sexual gratification,
• arousal, or
• abuse.³⁴

Sexual battery is a wobbler in California law, meaning that it may be charged as either a misdemeanor or a felony. In most cases, the maximum felony prison sentence is 4 years.³⁵

Depending on the circumstances of your case, you may be able to get your forcible penetration with a foreign object charges reduced to sexual battery charges, which carry a lighter sentence.

Additional resources

For additional information about California sexual assault laws and help for victims, refer to the following:

• Sexual Violence Resources – List by the California Attorney General of government agencies and other organizations providing information and support.
• California Coalition Against Sexual Assault (CALCASA) – Leading state advocacy group supporting victims and prevention. Key resource for education.
• California Victim Compensation Program – Provides financial assistance to victims of violent crime including sexual assault. State program.
• RAINN – National sexual assault hotline providing free, confidential support for survivors 24/7.
• Victims of Crime Resource Center – Provides information, assistance and referrals for victims of all types of crimes in California.

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