California Penal Code 289 - Forcible Sexual Penetration with a Foreign Object

Sex crime allegations are serious and a conviction will have a significant impact on the rest of your life. Many people do not realize that having this offense on ones’ record will be detrimental to future employment plans, academic pursuits, and housing opportunities, just to name a few.

Attempting to defend oneself against these accusations can seem beyond challenging. That’s why it’s highly recommended you find a knowledgeable defense attorney to represent you. An experienced and effective criminal defense lawyer will know how to fight on your behalf for the best possible outcome.

Definition of forced sexual penetration with a foreign object

California defines forcibly and sexually penetrating someone with an unknown/foreign object under Penal Code section 289. This law may seem comparable to California’s rape law, however, the difference is the unlawful penetration was done using an unknown object. 

The legal definition of PC 289 is specifically outlined as;

  • Committing sexual penetration on another individual,
    • Sexual penetration is defined as:
      • Causing the victim to penetrate their own, the defendant, or another person’s private/intimate area (genital or anal opening).
      • It does not matter how slight that penetration was, it means any unwanted, unlawful opening said area(s).
    • For the purposes of sexual gratification, arousal, or abuse:
      • Committing the act without getting sexually aroused or gratified does not have to play a factor in every case. If sexual abuse was committed, that’s enough to meet the definition of PC 289. Sexual abuse under this statute means the forced penetration was done to cause the victim discomfort, pain, injury.
    • Said penetration was done using an unknown or foreign object,
      • The object can be anything, from a baton to a beer bottle. Essentially any unknown object that is not considered a sexual organ.
    • Without the individual’s consent, and
      • Several situations are included under this detail;
        • An individual cannot legally consent or are incapable if they:
          • Are a minor,
          • Were too intoxicated to physically or coherently resist,
          • Had a physical, mental, or developmental disability, or
          • Were unconscious at the time of the act of sexual penetration.
        • The act was done using fear, intimidation, force, duress, coercion, menace, violence, or under the immediate threat of physical harm, bodily injury, or retaliation.
          • Using just enough force to overpower another person,
          • Using direct or indirect (implied) threats,
          • Threatening, stating, or acting with the intent to injure another person, or

Closely Related Offenses

The following crimes are very similar to PC 289 and can often be charged in addition to it. If the defendant was accused of performing more than one type of sexual act on the victim, they could face multiple charges.

Penal Code section 261, Rape;

Nonconsensual intercourse conducted under threat, force, or fraud is illegal and results in felony consequences.

Penal Code section 262, spousal rape;

Nonconsensual intercourse between spouses, conducted under threat, force, or fraud is illegal and results in the same felony consequences as PC 261, rape.

Penal Code section 261.5, statutory rape;

Having sexual intercourse with a minor, someone under 18 years old, is a crime.

Penal Code section 288a, oral copulation by force or fear;

Forcing or using fear to victimize another person by making them perform oral copulation is a felony.

Penal Code section 243.4, sexual assault (sexual battery);

Nonconsensual touching of someone else’s private or intimate parts for the purposes of sexual abuse, arousal, or gratification is a crime.

Similar Offenses

Penal Code section 207, kidnapping;

Also known as simple kidnapping, you violate this law when moving another person without their consent by using force or fear.

Penal Code section 236, (felony) false imprisonment;

Detaining, restraining, confining, or making a person stay against their will, using menace or violence, is a felony offense.

Penal Code section 288, lewd or lascivious acts with a minor;

This crime is defined as touching a child or persuading, causing, or forcing a child to touch themselves for sexual arousal, gratification, or other sexual purposes.

The Prosecution

For the prosecution to get a conviction for PC 289, they are responsible for proving beyond a reasonable doubt that the elements of the crime took place. These elements are also referred to as the facts of the case/crime. They are as follows:

Facts/Elements of the Crime

  • The defendant perpetrated an act of sexual penetration with another individual;
  • The act was conducted using a foreign or unknown object;
  • It was done against the other person’s will and without their express consent; and
  • The penetration was executed by using duress, force, fear or intimidation of immediate bodily harm, injury, or potential threats of physical violence.

An example of a case where these criteria are met is:

Kris was threatened with hardships for her and her family if she did not commit PC 289 for her boss, Peter. Afraid of the extreme financial repercussions, she did what he asked.

Peter committed the act of PC 289 by using duress on his employee, Kris. Furthermore, he would face charges for sexual harassment in the workplace. Being in a place of power or authority over ones’ victim is taken into consideration and will likely result in harsher sentencing.

Who Can Be Charged

For a greater understanding of what instances can lead to a PC 289 offense, take a look at these examples. These situations illustrate who can be charged with PC 289.

Example 1:

Stan and Merle were hired by a gang leader to beat up Gary, a drug dealer who failed to meet his quota for the third time. They went to his house and attacked him, tied him down, struck his genitals several times, and then used a mop handle to forcibly penetrate Gary’s anus. 

Just because Stan and Merle were not sexually aroused or gratified by the act, does not mean they are not guilty of committing PC 289. Both men would be charged with forcible penetration with a foreign object for the purposes of sexual abuse. They would also face additional charges for assaulting Gary’s genital area, under PC 243.4, sexual battery. On top of that, because they used violence to forcibly restrain him against his will, they could face charges under PC 236, felony false imprisonment. If they moved Gary a certain distance against his will, it would rise to the level of kidnapping under PC 207.

Example 2:

Darrell and Emie went on a date and had some alcoholic beverages. The last call was made and they ordered one more drink. Emie went to the restroom while Darrell waited for their drinks. He slipped a high-dosage sleep aid into her drink while she was gone. By the time they left the bar, she could barely walk straight and her speech was extremely slurred. Darrell led her into the cab of his truck and proceeded to forcibly penetrate her with his fingers and then rape her.

Darrell will face charges for date rape, PC 261 and forced sexual penetration with an unknown/foreign object, PC 289. The consequences he faces will be more significant because he used a date rape drug, the sleep aid, coupled with an excess of alcohol to commit the act. Both of these statutes include situations where the victim was too intoxicated to protest, was unconscious, drugged, and/or essentially not deemed legally capable of giving their consent.

Example 3:

Frankie was a mentor to 16-year-old Dante, a mentally disabled teen. He introduced Dante to his autistic neighbor, Desiree, who was 15-years-old. He coerced the two kids into committing lewd sexual acts, use unknown objects to sexually penetrate each other, and perform oral copulation on one another, while he watched. They were both afraid to say no and displease him.

Frankie will face multiple charges for forcing minors to commit lewd sexual acts under PC 288, oral copulation through fear under PC 288a, and forced sexual penetration with an unknown object(s) under PC 289. Not only will he face steeper consequences for victimizing minors, but he could also face harsher penalties because he was a mentor. Frankie was a person who was entrusted with Dantes’ care and had professional authority or power over his victim(s).

Legal Defense

Law enforcement takes sex crimes seriously, which sometimes means they can respond without a complete investigation. This can lead to confusing situations that will, unfortunately, be life-changing for the defendant. When facing impossible odds, it’s easy to forget where to find help or who to ask for advice.

Finding an expert legal defense team who understands the complexities of California’s sex crimes does not have to be challenging. An experienced criminal defense attorney will have a professional understanding of what the common legal defenses are when fighting charges of PC 289.

False Accusations and Wrongful Arrests

Sex crimes are considered heinous, so it’s no surprise that police may react quickly before conducting a proper investigation. With this in mind, it’s not unheard of for false accusations to be made which can lead to wrongful arrests.

Example:

Tanya came home early from work to find her wife, Gwen, on the living room floor, being sexually penetrated with a sex toy by their electrician, Bob. As soon as Gwen heard the door open, she began to resist and slapped him away. She then claimed he illegally did this to her and wanted to press charges for PC 289.

Too angry to react to her false accusation, Tanya left, unaware that Gwen called the police and had Bob arrested.

Bob would not be guilty of PC 289, because the act was consensual and Gwen only wanted to cover up the fact that she was cheating on her wife, Tanya. In this case, Tanya’s statements would prove Bob’s innocence and Gwen could face charges for making false statements.

Was it consensual?

This includes situations where the defendant had a reasonable belief that the act was consensual.

Example:

Dawn was a victim of sexual abuse and felt she was ready to start dating again. On her third date with Paul, they ended the night in his apartment listening to music. While they were getting more intimate, he slipped his hand down her pants. At first, she objected and he stopped and apologized. She said, “never mind,” and they continued kissing and touching each other. As things became more intimate, he did it again. After several songs passed, Dawn began to cry, pulled away, grabbed her things, and ran out the door while he continuously asked her, “what’s wrong?” She later accused him of PC 289, claiming he did not respect her first objection to having his hand down her pants.

Under these circumstances, Paul would not be guilty of PC 289, because he had a reasonable belief that the sexual acts were consensual. Not only did he listen, stop, and apologize after her first reaction, but he did not force her to stay nor did he prevent her from objecting or leaving when they had continued sexually touching one another. Also, when she said, “never mind,” and embraced him again, he was led to believe everything was alright.

The fact that several songs had passed, in which Paul believed their intimacy was mutually desired, indicates the passage of time in which she did not say or do anything to resist.

False statements can play a role in cases like this one, however, Dawn’s incident may differ. Sadly, due to her past trauma, her mental anguish could have been enough to lead her to believe that she was being victimized, again...when she technically wasn’t.

Extremely complicated situations like this can have satisfying results for all parties involved if they had the right legal advice.

Penalties for Penal Code section 289

If convicted of forcible sexual penetration with an unknown/foreign object, you face:

Felony;

Formal probation,

3, 6, or 8-years in state prison, and/or

Up to ten thousand dollars ($10,000) in fines.

Lifetime requirement to register as a tier three sex offender.

Sentencing is harsher if the act was committed against a minor. In addition to formal probation and high fines, you face:

If the victim was 14 years old or older, you face:

6, 8, or 10-years in state prison.

If the victim was a minor under 14 years old, you face:

8, 10 or 12-years in state prison.

Enhanced Penalties for PC 289

The defendant is required to register as a sex offender under California’s Sex Offender Registration Act. Failure to do so will result in charges filed under Penal Code 290.

If the defendant was convicted of a misdemeanor and fails to register, they face:

Misdemeanor;

Summary probation,

Up to one year in county jail, and/or

Fines of up to one thousand dollars.

If the defendant is convicted of PC 289 or any other felony sex crime and fails to register, they face:

Felony;

Formal probation,

16 months, 2 or 3-years in state prison, and/or

Up to ten thousand dollars in fines.

If the victim suffered great, significant, or severe bodily injuries as a result of committing PC 289, the consequences will get harsher and the fines steeper. It’s important to remember, even if someone is convicted of this crime, it does not mean they cannot face additional consequences. A conviction does not eliminate the defendant from further legal action taken by the victim.

Aside from what the court decides, the alleged victim(s) can sue for further damages. The defendant could be held accountable for paying any medical bills, counseling sessions, missed wages, or other financial hardships to the victim, as a result of the sexual assault.

Penalties for Related Offenses

PC 261, Rape;

Felony;

3, 6, or 8-years in a California state prison,

Fines of up to ten thousand dollars,

A strike under California’s Three Strikes law, and

Lifetime registration as a tier three sex offender.

PC 288a, oral copulation by force or fear;

Felony;

Formal probation,

3, 6, or 8-years in state prison, and/or

Up to ten thousand dollars in fines.

PC 243.4, sexual battery (sexual assault);

Misdemeanor;

Summary Probation,

Up to 6 months in county jail, and/or

Up to three thousand dollars ($3,000) in fines.

Also, up to ten years of required registration as a tier one sex offender.

Felony;

Formal probation,

2, 3, or 4-years in state prison, and/or

Fines of up to ten thousand dollars ($10,000).

Lifetime registration as a tier three sex offender.

PC 261.5, statutory rape;

Misdemeanor;

Informal probation,

One year in county jail, and/or

Up to one thousand dollars in fines.

Felony;

Informal or formal probation and up to one year in county jail,

Up to ten thousand dollars in fines, and/or

16 months, 2, 3, or 4-years in county jail.

PC 262, spousal rape;

Felony;

3, 6, or 8-years in a California state prison,

Fines of ten thousand dollars,

A strike under California’s Three Strikes law, and

Lifetime registration as a tier three sex offender.

PC 207, kidnapping;

Felony;

3, 5, or 8-years in state prison, and

Fines of up to ten thousand dollars.

PC 236, (felony) false imprisonment;

Felony;

Up to one thousand dollars in fines, and

16 months, 2, or 3-years in county jail.

PC 288, lewd or lascivious acts with a minor;

Felony;

Formal probation,

Up to ten thousand dollars in fines, and/or

3, 6, or 8-years in state prison.

Call Us For Help

Are you or someone you know facing charges for PC 289 or any similar offenses? Don’t hesitate to contact the Law Offices of Anna R. Yum. As a top-rated criminal defense lawyer, Attorney Yum has seen how devastating a sex crime allegation and/or conviction can be.

If you would like more information on PC 289 or any of the aforementioned statutes, simply click here to chat with one of our specialists.

You can also call us at 619-244-4433 to schedule your free consultation.

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