California Penal Code § 289 prohibits the nonconsensual and forcible penetration of a victim with a foreign object. A conviction is a felony punishable by up to 8 years in state prison.
Forcible penetration is generally defined as:
- penetrating the vagina or anus of a person,
- using a foreign object,
- without consent, and
- by means of force or threats of force.
The language of the code section reads:
289. (a) (1) (A) Any person who commits an act of sexual penetration when the act is accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for three, six, or eight years.
You may also face charges for:
- Committing sexual penetration on a person who is unable to legally consent because of a mental disorder or developmental or physical disability;
- Committing sexual penetration on a person who is unconscious of the nature of the act; or
- Committing sexual penetration on someone who is too intoxicated to resist. 1 2 3
Examples
Some examples of scenarios that could lead to charges in California include:
- A man uses physical force to subdue a woman and then puts his finger into her vagina;
- Several members of a college fraternity use a beer bottle to penetrate the vagina of a woman who is passed out drunk at their frat house; and
- A man wielding a knife threatens to stab a woman unless she uses a dildo to penetrate the anus of another man.
Penalties
PC 289 forcible acts of sexual penetration is a felony in California law.
In most cases, it carries a potential California state prison sentence of
- three (3),
- six (6) or
- eight (8) years, and/or
- a fine of up to ten thousand dollars ($10,000).4
In most cases, a conviction under this section will also make you subject to California’s lifelong sex offender registration requirement as a tier-three offender. (The judge has discretion not to require registration in PC 289(h) or (i) cases when the child was at least 14 years old and within 10 years of age of the defendant.)5
This means that if you are convicted under this section as a three-tier offender, you must register with the state at least every year for the rest of your life—or else face additional felony charges for failure to register as a sex offender.6
Legal defenses
As with many sex crimes, this section is frequently charged unfairly—often as a result of false accusations by someone who knows you.
If this happens to you or someone you love, we recommend that you hire our experienced California sex crimes defense attorneys. We can help you use certain common legal defenses to fight the charges, possibly including:
- The alleged “victim” actually consented,
- You reasonably believed that the “victim” had consented, or
- The accusations are false.
In order to help you better understand the law, our California criminal defense attorneys will address the following:
- 1. What is the definition of forcible sexual penetration with a foreign object?
- 2. What are the penalties under 289 PC?
- 3. How can I fight these charges in court?
- 4. Related offenses
- Additional resources
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
1. What is the definition of forcible sexual penetration with a foreign object?
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.
1.1. By force or fear
The basic legal definition of sexual penetration by force or fear has the following “elements of the crime”:
- You committed an act of sexual penetration with another person;
- That penetration was accomplished using a foreign object, substance, instrument, or device, or an unknown object;
- The other person did not consent to the penetration; and
- 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 take a better look at some of these elements 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
Forcible penetration with an object like a beer bottle is covered by Penal Code 289 PC.
“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:
- Force—meaning just enough physical force to overcome the other person’s will;
- Violence;
- 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;
- Menace—meaning a threat, statement, or act showing an intent to injure someone;
- A threat of immediate and unlawful bodily injury; and/or
- 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
1.2. Of a disabled person
You can also be guilty of forcible sexual penetration under PC 289 if you do not use force, duress, etc.
For example, you are guilty of this crime if you:
- Commit an act of sexual penetration with someone who has a mental disorder or developmental or physical disability that prevents them from understanding the nature and possible consequences of the act, and
- Know or reasonably should have known that the other person’s disorder or disability would prevent them from legally consenting.17
1.3. Of an unconscious person
You may also be convicted if:
- You engage in sexual penetration with a foreign object with someone who is unconscious of the nature of the act, and
- 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
1.4. 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:
- The other person is incapable of resisting because they have consumed drugs, alcohol, or another intoxicating substance; and
- You knew or reasonably should have known that they could not consent because of this.20
But for purposes of this statute, 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. What are the penalties under 289 PC?
Penal Code 289 forcible sexual penetration with a foreign object is a California felony.22
The potential penalties include:
- Felony (formal) probation (beginning in 2017, this will be available only in cases of sexual penetration of a disabled person–not in cases of penetration by force or fear, or of an unconscious or intoxicated person);
- Three (3), six (6) or eight (8) years in California state prison; and/or
- A fine of up to ten thousand dollars ($10,000).23
2.1. Forcible sexual penetration of a minor
If the alleged victim of forcible sexual penetration with a foreign object is a minor (that is, under 18 when the offense occurs), the potential prison sentence increases to:
- Six (6), eight (8) or ten (10) years in prison if they are 14 years of age or older; or
- Eight (8), ten (10) or twelve (12) years in prison if they are under 14.24
A person faces a longer prison sentence for forcible penetration with a foreign object of a minor.
2.2. Sex offender registration requirement
If you are convicted under Penal Code 289 PC, you will also be subject to California’s sex offender registration requirement.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
|
Tier two (you must register for 20 years) | Felonies when
|
Tier three (you must register for life) |
|
3. How can I fight these charges in court?
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.
3.1. 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
3.2. 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.
3.3. 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
4.1. 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
4.2. 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 three (3), six (6) or eight (8) years.33
4.3. 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 four (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.
Legal References:
- Penal Code 289 PC – Forcible sexual penetration with a foreign object. (“(a) (1) (A) Any person who commits an act of sexual penetration when the act is accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for three, six, or eight years. (B) Any person who commits an act of sexual penetration upon a child who is under 14 years of age, when the act is accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, shall be punished by imprisonment in the state prison for 8, 10, or 12 years. (C) Any person who commits an act of sexual penetration upon a minor who is 14 years of age or older, when the act is accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, shall be punished by imprisonment in the state prison for 6, 8, or 10 years. (D) This paragraph does not preclude prosecution under Section 269, Section 288.7, or any other provision of law. (2) Any person who commits an act of sexual penetration when the act is accomplished against the victim’s will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat, shall be punished by imprisonment in the state prison for three, six, or eight years. . . . (k) As used in this section: (1) “Sexual penetration” is the act of causing the penetration, however slight, of the genital or anal opening of any person or causing another person to so penetrate the defendant’s or another person’s genital or anal opening for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object. (2) “Foreign object, substance, instrument, or device” shall include any part of the body, except a sexual organ. (3) “Unknown object” shall include any foreign object, substance, instrument, or device, or any part of the body, including a penis, when it is not known whether penetration was by a penis or by a foreign object, substance, instrument, or device, or by any other part of the body. (l) As used in subdivision (a), “threatening to retaliate” means a threat to kidnap or falsely imprison, or inflict extreme pain, serious bodily injury or death. (m) As used in this section, “victim” includes any person who the defendant causes to penetrate the genital or anal opening of the defendant or another person or whose genital or anal opening is caused to be penetrated by the defendant or another person and who otherwise qualifies as a victim under the requirements of this section.”). See also People v. Ngo (Cal. App. 6th Dist. 2014), 225 Cal. App. 4th 126; In re K.C. (Cal. App. 2d Dist. 2023) 87 Cal. App. 5th 921.
- Judicial Council of California Criminal Jury Instructions (CALCRIM) 1046 – Sexual Penetration by Force, Fear, or Threats.
- Penal Code 289 PC – (“(b) Except as provided in subdivision (c), any person who commits an act of sexual penetration, and the victim is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act or causing the act to be committed, shall be punished by imprisonment in the state prison for three, six, or eight years. Notwithstanding the appointment of a conservator with respect to the victim pursuant to the provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving legal consent. (c) Any person who commits an act of sexual penetration, and the victim is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act or causing the act to be committed and both the defendant and the victim are at the time confined in a state hospital for the care and treatment of the mentally disordered or in any other public or private facility for the care and treatment of the mentally disordered approved by a county mental health director, shall be punished by imprisonment in the state prison, or in a county jail for a period of not more than one year. Notwithstanding the existence of a conservatorship pursuant to the provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving legal consent. (d) Any person who commits an act of sexual penetration, and the victim is at the time unconscious of the nature of the act and this is known to the person committing the act or causing the act to be committed, shall be punished by imprisonment in the state prison for three, six, or eight years. As used in this subdivision, “unconscious of the nature of the act” means incapable of resisting because the victim meets one of the following conditions: (1) Was unconscious or asleep. (2) Was not aware, knowing, perceiving, or cognizant that the act occurred. (3) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraud in fact. (4) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose. (e) Any person who commits an act of sexual penetration when the victim is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused, shall be punished by imprisonment in the state prison for a period of three, six, or eight years.”)
- Same. See also Penal Code 672 PC. (“Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed.”)
- Penal Code 290 PC – Sex Offender Registration Act; Senate Bill 145 (2020).
- California Penal Code 290.018 PC – Penalties for [failure to register as a sex offender].
- CALCRIM 1046 – Sexual Penetration by Force, Fear, or Threats, endnote 2, above.
- CALCRIM 1046 – Sexual Penetration by Force, Fear, or Threats. (“Sexual penetration means (penetration, however slight, of the genital or anal opening of the other person/ [or] causing the other person to penetrate, however slightly, the defendant’s or someone else’s genital or anal opening/ [or] causing the other person to penetrate, however slightly, his or her own genital or anal opening) for the purpose of sexual abuse, arousal, or gratification.”)
- CALCRIM 1046 – Sexual Penetration by Force, Fear, or Threats. (“[A foreign object, substance, instrument, or device includes any part of the body except a sexual organ.]”)
- People v. Quintana (2001) 89 Cal.App.4th 1362.
- Based on the facts of the same.
- CALCRIM 1046 – Sexual Penetration by Force, Fear, or Threats. (“[Penetration for sexual abuse means penetration for the purpose of causing pain, injury, or discomfort.]”)
- CALCRIM 1046 – Sexual Penetration by Force, Fear, or Threats, endnote 2, above.
- CALCRIM 1046 – Sexual Penetration by Force, Fear, or Threats. (“[In order to consent, a person must act freely and voluntarily and know the nature of the act.]”)
- CALCRIM 1046 – Sexual Penetration by Force, Fear, or Threats. (“[Evidence that the defendant and the person (dated/were married/ had been married) is not enough by itself to constitute consent.] [Evidence that the person (requested/suggested/communicated) that the defendant use a condom or other birth control device is not enough by itself to constitute consent.]”)
- CALCRIM 1046 – Sexual Penetration by Force, Fear, or Threats, endnote 2, above. See also CALCRIM 1046 – Sexual Penetration by Force, Fear, or Threats. (“[An act is accomplished by force if a person uses enough physical force to overcome the other person’s will.] [Duress means a direct or implied threat of force, violence, danger, hardship, or retribution that causes a reasonable person to do [or submit to] something that he or she would not otherwise do [or submit to]. When deciding whether the act was accomplished by duress, consider all the circumstances, including the age of the other person and (his/her) relationship to the defendant.] [Retribution is a form of payback or revenge.] [Menace means a threat, statement, or act showing an intent to injure someone.] [An act is accomplished by fear if the other person is actually and reasonably afraid [or (he/she) is actually but unreasonably afraid and the defendant knows of (his/her) fear and takes advantage of it].]”)
- CALCRIM 1049 – Sexual Penetration of a Disabled Person. (“The defendant is charged [in Count ______] with sexual penetration of a mentally or physically disabled person. To prove that the defendant is guilty of this crime, the People must prove that: 1. The defendant committed an act of sexual penetration with another person; 2. The penetration was accomplished by using (a/an) (foreign object[,]/ [or] substance[,]/ [or] instrument[,]/ [or] device[,]/ [or] unknown object); 3. The other person had a (mental disorder/developmental or physical disability) that prevented (him/her) from legally consenting; AND 4. The defendant knew or reasonably should have known that the other person had a (mental disorder/ developmental or physical disability) that prevented (him/ her) from legally consenting.”)
- CALCRIM 1048 – Sexual Penetration of an Unconscious Person. (“The defendant is charged [in Count ______] with sexual penetration of a person who was unconscious of the nature of the act. To prove that the defendant is guilty of this crime, the People must prove that: 1. The defendant committed an act of sexual penetration with another person; 2. The penetration was accomplished by using (a/an) (foreign object[,]/ [or] substance[,]/ [or] instrument[,]/ [or] device[,]/ [or] unknown object); 3. The other person was unable to resist because (he/she) was unconscious of the nature of the act; AND 4. The defendant knew that the other person was unable to resist because (he/she) was unconscious of the nature of the act.”)
- CALCRIM 1048 – Sexual Penetration of an Unconscious Person. (“A person is unconscious of the nature of the act if he or she is (unconscious or asleep/ [or] not aware that the act is occurring/ [or] not aware of the essential characteristics of the act because the perpetrator tricked, lied to, or concealed information from the person/ [or] not aware of the essential characteristics of the act because the perpetrator fraudulently represented that the sexual penetration served a professional purpose when it served no professional purpose).”)
- CALCRIM 1047 – Sexual Penetration of an Intoxicated Person. (“The defendant is charged with sexual penetration of a person while that person was intoxicated. To prove that the defendant is guilty of this crime, the People must prove that: 1. The defendant committed an act of sexual penetration with another person; 2. The penetration was accomplished by using (a/an) (foreign object[,]/ [or] substance[,]/ [or]instrument[,]/ [or]device[,]/ [or] unknown object); 3. The effect of (a/an) (intoxicating/anesthetic/controlled) substance prevented the other person from resisting the act; AN 4. The defendant knew or reasonably should have known that the effect of that substance prevented the other person from resisting the act.”)
- CALCRIM 1047 – Sexual Penetration of an Intoxicated Person. (“A person is prevented from resisting if he or she is so intoxicated that he or she cannot give legal consent. In order to give legal consent, a person must be able to exercise reasonable judgment. In other words, the person must be able to understand and weigh the physical nature of the act, its moral character, and probable consequences. Legal consent is consent given freely and voluntarily by someone who knows the nature of the act involved.”)
- Penal Code 289 PC – Forcible sexual penetration with a foreign object, endnotes 1 and 3, above.
- Same.See also Penal Code 672 PC, endnote 4, above.See also Penal Code 1203.065 PC — Probation for sexual assault crimes.
- Penal Code 289 PC – Forcible sexual penetration with a foreign object, endnote 1, above.
- Penal Code 290 PC – Sex Offender Registration Act, endnote 5, above; Senate Bill 145 (2020); Phil Willon, Newsom signs bill intended to end discrimination against LGBTQ people in sex crime convictions, LA Times (September 11, 2020).
- See same.
- CALCRIM 1046 – Sexual Penetration by Force, Fear, or Threats, endnote 2, above.
- Same.
- CALCRIM 1046 – Sexual Penetration by Force, Fear, or Threats. (“Defense: Reasonable Belief in Consent [The defendant is not guilty of forcible sexual penetration if (he/ she) actually and reasonably believed that the other person consented to the act. The People have the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe that the other person consented. If the People have not met this burden, you must find the defendant not guilty.]”)
- Penal Code 287 PC – Oral copulation by force or fear.
- Same.
- Penal Code 261 PC — Rape defined.
- Penal Code 264 PC—Rape; punishment. (“(a) Except as provided in subdivision (c), rape, as defined in Section 261 or 262, is punishable by imprisonment in the state prison for three, six, or eight years.”)
- Penal Code 243.4 PC – Sexual battery
- Same.