Sex crimes are mainly sexual activities committed against another person’s consent. Consent is critical when two adults are engaging in a sexual act. You must seek the other person’s approval and stop the act if the person takes away the consent in the middle of the act. Failing to ask for consent or using deceit or fraud to cause a person to agree to your sexual acts is an offense. It is also a grave offense to use force to penetrate another person sexually and against their consent.
The law under PC 289 prohibits forcible sexual penetration by a man or woman. A conviction for this crime can result in a lengthy jail sentence and an expensive court fine. It also carries an order to register in the sex offender registry. Thus, you must act swiftly if you face false accusations under PC 289 in Monterey. This includes finding the best criminal defense lawyer to help prepare your defense.
Our attorneys at Monterey Criminal Attorney are experts on sex-related crimes. We utilize our best defense techniques to push for a case dismissal or a reduced sentence.
What Forcible Sexual Penetration Means
Sexual penetration entails the use of an object on a person’s sexual organs, including the anus or vagina. It is allowed between or among consenting adults. However, forcible sexual penetration is a grave offense because it includes the use of force and is committed against a person’s consent. The crime happens when you forcibly, and against another person’s permission, penetrate their anus or vagina with a foreign object. You can also face charges under this statute if you use threats of harm or fraud to overcome the victim’s consent to the sexual act.
The DA must demonstrate all the facts of this crime beyond a reasonable doubt for the court to convict you. These elements are provided under PC 289, and they include the following facts:
- You penetrated another person sexually
- You committed the said act with a foreign object
- You did it against the person’s will
- You used force, menace, threats of harm, or threats of violence to accomplish the act
- You committed the offense for sexual abuse or sexual gratification
These elements are critical in the legal definition of this offense. Thus, the DA must demonstrate all these elements to obtain a guilty verdict. Let us discuss each aspect at a time to understand its meaning better:
Sexual Penetration
PC 289 forbids sexual penetration against another person’s consent. You cannot face charges here if the sexual act you engaged in does not involve penetration. Sexual penetrations mean penetrating another person’s sex organs (the vagina for women and the anus for both men and women). Charges under this statute can also occur if you force another person to penetrate your sexual organs or the sexual organs of another person.
Foreign Object
Penetration under PC 289 should be done with a foreign object. In this case, an object is an unknown substance, device, instrument, object, or anything else but a sexual organ. It can be an external object like a sex toy or a body part like a finger or tongue. Other objects that people use in these cases include toes, bottles, and broom handles.
Against the Victim’s Consent
Sexual penetration is a crime when it is committed against a person’s consent. A person consents to a sexual act when they understand the nature and consequences of the act and they agree to participate in it. If you trick or force a person into a sexual act, you take away their consent, which is unlawful. Consent should be voluntary and free. It can be verbal or implied. A person can give consent and then change their mind a little later.
Note that minors (below 18) cannot consent to any sexual act. Other people who cannot consent to sexual acts are as follows:
- People who are highly intoxicated
- Those who are unconscious or in deep sleep
- Those who have a mental or physical disability preventing them from comprehending the act or consenting to a sexual act
Knowingly engaging in sexual acts with a person who cannot give consent is unlawful. However, the DA must demonstrate knowledge that the person cannot consent to the sexual act because of their disability, incapacitation, or age.
The Intent
A violation of PC 289 can be for sexual gratification or abuse. The DA must demonstrate this intent so that the court can find you guilty. Suppose you committed the offense for sexual gratification. In that case, the district attorney must prove that you intended to derive sexual pleasure or become sexually aroused by your actions or the victim’s actions. Demonstrating the intent is enough to obtain a conviction. The prosecutor does not have to prove that you were aroused or gratified by the act.
If you committed the act for sexual abuse, the district attorney must prove that you intended to injure, hurt, intimidate, or humiliate the victim.
The Use of Force
Forcible sexual penetration means that you use force or threats of harm to overcome the victim’s consent to penetration. You are guilty if you used coercion, violence, or menace to compel the victim to participate in the act. The use of force means physical, mental, or emotional force to overcome the person’s will. You are also guilty if you put the person under duress, meaning that you used implied force, retribution, threats, or fear to force the person into the act.
Forcible Sexual Penetration Vs. Sexual Battery
Under California law, these are closely related crimes. However, they differ in various ways and have different penalties after conviction.
Remember that in the legal definition of forcible sexual penetration, there are specific elements that the DA must demonstrate to obtain a conviction. These include proving that you used a foreign object to penetrate the sexual organs of another person without the person’s will.
On the other hand, sexual battery involves an unlawful touch of a person’s sexual organs against their will. Sexual battery does not necessarily involve sexual penetration, and forcible sexual penetration goes beyond a mere touch. The prosecutor will file charges for forcible sexual penetration or sexual battery, depending on the details of your case.
Forcible sexual penetration is a seemingly graver offense than battery. The DA can reduce your charges under PC 289 to sexual battery if they cannot demonstrate all the facts of your case beyond a reasonable doubt.
Penalties for Forcible Sexual Penetration
All sexual crimes are severely punished in California. Forcible sexual penetration is a felony offense punishable by the following:
- A three- to eight-year prison sentence
- Felony probation
- Court fines of $10,000
You could receive a probation sentence instead of serving your entire sentence in prison. However, you are ineligible for probation if your alleged victim was physically or mentally disabled. If you qualify for probation, the judge can give it during your sentence, or you can request it instead of a prison sentence through your attorney. However, you could be required to serve part of your sentence in jail.
Probation is favorable because it allows you freedom while serving your sentence. You can work or care for your family during this period. However, it comes with strict conditions that the judge sets during sentencing. You must abide by these conditions throughout your probation to avoid additional charges. For example, the judge could order you to engage in community work, not to commit a crime or face an arrest while on probation, and to seek treatment for an underlying conviction that led to the violation.
If you serve your probation well and to the end, the judge will lift the conditions so you can live your life like you did before the conviction. However, if you violate your probation, the judge can cancel it and send you to prison for the required period.
If there are aggravating circumstances in your case, the judge can enhance your punishment. For example, the judge can enhance your penalties if the supposed victim is a minor or suffered a severe physical injury due to your actions. If the victim is older than fourteen, you can receive a prison sentence of six to ten years. If the victim is younger than fourteen, the sentence can increase to eight and twelve years.
Additionally, this is an offense whose conviction carries an order to register in the sex offender registry. The registry has three tiers, whereby you can register every year for ten years, every year for twenty years, or every year for life, depending on the gravity of your charges. Failing to register as required can result in a rearrest and fresh criminal charges.
Other Outcomes of a Forcible Sexual Penetration Conviction
A felony conviction under PC 289 will impact your gun rights. Felons are among the people who cannot purchase, possess, or use a firearm in California. You can sell a gun if you have one or surrender it to the authorities after the conviction.
A felony conviction will also affect your career and social life. A lengthy prison sentence will likely result in job loss or the loss of your business. Finding another job after spending so many years in prison is challenging. Besides, potential employers run background checks on potential employees. If they find out about your criminal background, you could lose a chance of finding suitable employment.
Socially, people who have been behind bars for years find it hard to socialize and make friends. Your previous friends, and sometimes family members, will cut communication with you, and that relationship could be challenging to rekindle after being in prison for years.
Thus, you need to work hard on your defense to avoid these and many other outcomes of a criminal conviction. A solid defense can result in dismissed charges, or the judge can reduce your charges for charges with a lighter sentence.
Defense Strategies You Can Use To Avoid a PC 289 Conviction
A conviction under PC 289 carries life-changing consequences. In addition to a lengthy prison sentence and a hefty fine, you could register in the sex offender registry for years or a lifetime. You must do anything possible to avoid a criminal conviction or seek a fair resolution for your case. Fortunately, you can defend yourself to prevent the harsh penalties. You can do it with a skilled defense lawyer. Your lawyer can use some of the best defense techniques to cause the judge to dismiss your charges or give a favorable ruling. Here are examples of techniques that can work in your case:
You Had The Other Person’s Consent
Forcible sexual penetration is lawful when it happens between or among consenting adults. It becomes a crime when committed against another person’s consent. You are not guilty under PC 289 if the supposed victim consented to the act. However, you must demonstrate that they communicated or implied their content and understood the nature of the sexual act. If the court accepts your defense, your charges will be dismissed.
However, the issue of consent is challenging to prove, even for district attorneys. Sexual acts happen behind closed doors. Since it is difficult for the prosecution or defense teams to prove beyond a reasonable doubt that one person gave or did not consent, they depend on the words of the alleged victim and the defendant. In your defense, you can argue that you explained the sexual act to the victim, and they willingly participated in it. You can also add that the victim did not, at any given time, tell you to stop or push you away.
A skilled attorney can also create loopholes in the prosecutor’s case, especially if the DA cannot demonstrate beyond a reasonable doubt that you acted against the alleged victim’s consent. Since the burden of proof lies with the prosecution, the court will drop your charges if the prosecutor fails to meet it.
You Are Mistakenly Identified
This defense strategy can work in cases where the sexual act occurred in the dark or when a victim was intoxicated, asleep, or unconscious, and they cannot identify the alleged perpetrator. The victim could have identified you as the perpetrator because you were near the crime scene, lived in the same house as the alleged perpetrator, or had similar physical features to the suspected perpetrator.
Mistaken identities are common in sex-related crimes. Sadly, they can lead to a wrongful conviction if innocent people cannot successfully defend themselves against the false charges they face. However, an experienced attorney will not allow you to be convicted of a crime you have not committed. They will use all possible strategies and table evidence in court to convince the jury of your innocence.
For example, your attorney can use your alibi to exonerate you from the crime. This can work if they prove that you were far from the crime scene when it was committed. A skilled attorney can also use forensic evidence to demonstrate that someone else, not you, committed the act. If this works, the judge can drop your charges.
There Was No Sexual Penetration
You cannot face charges under PC 289 if the details of your case do not involve sexual penetration. Penetration is an integral element of this crime. The prosecution must demonstrate that penetration occurred to obtain a conviction under this statute. The judge can dismiss or reduce your charges if it does not happen. Remember that sexual penetration occurs when a person penetrates the sex organ of another person with a foreign object.
You can fight your charges by arguing and proving that sexual penetration did not occur. It could be that you only touched the alleged victim’s sexual organs for sexual arousal or gratification. In this case, the prosecutor will reduce your charges to sexual battery, which is a more lenient charge. An aggressive attorney can push for a misdemeanor charge instead of a felony charge to avoid the lengthy prison sentence and other severe penalties of a felony conviction.
Note: A sexual battery charge is grave, too. It carries severe penalties and an order to register in the sex offender industry. Your attorney will ensure you understand the penalties you will likely receive if the judge reduces your charge before pushing for a plea bargain.
You Are Falsely Accused
You deserve a fair resolution of your case if someone is falsely accusing you of forcible sexual penetration. If not, you could end up paying for a crime you have not committed. An aggressive criminal defense attorney can help you develop a solid defense to ensure the court dismisses your charges.
False accusations are common, especially in sex-related cases where the court relies on the victim’s testimony to determine a case. However, a skilled attorney can interview eyewitnesses or establish your alibi to defeat the charges. A competent attorney can also discover facts unknown to the prosecution that could help your case. Alternatively, they can challenge the victim’s credibility and push the court to drop your charges.
The Arresting Officer Misconducted Themself
You could push for a favorable resolution of your case if the police did not conduct themselves as they should during your arrest or case investigation for forcible sexual penetration. For example, if an officer failed to grant or read your rights or used coercion or force to obtain evidence, your attorney can force the judge to disregard evidence gathered after the violation. This could leave the prosecutor with insufficient evidence to prove the case beyond a reasonable doubt.
The police are guided by strict standards by which they must abide when handling suspected offenders or investigating crimes. A violation of these standards can result in severe consequences. You must confide in your attorney about any misconduct or violation the police committed when handling you or your case. A skilled attorney will use it to benefit your situation.
Forcible Sexual Penetration and Related Charges
Some crimes under California law are closely related to forcible sexual penetration. They can affect how the prosecutor handles your case. These offenses are as follows:
PC 261 Rape
You commit rape in violation of PC 261 when you use threats, fraud, or force to engage in a non-consensual sex-related act with another person. The offense is also a felony offense, and its conviction carries an order to register in the sex offender registry.
Rape and forcible sexual penetration have identical elements, but they differ significantly. For example, both involve a non-consensual sex-related act. The main difference between the two is the object for sexual penetration. In rape cases, perpetrators use their sexual organs, or penis, to penetrate the victim’s sexual organs. In forcible sexual penetration, perpetrators use a foreign object for the penetration.
PC 243.4 Sexual Battery
Sexual battery is also very closely repeated to forcible sexual penetration. However, the two offenses differ in their legal definitions. Sexual battery happens when you touch another person’s sexual organs without their consent for sexual abuse, arousal, or gratification. The crime is a wobbler, meaning the DA can charge it as a felony or misdemeanor, depending on the case details.
The main difference between sexual battery and forcible sexual penetration is that the former does not involve any form of penetration. Additionally, sexual battery is a more lenient charge, with less severe penalties than forcible sexual penetration.
PC 287 Oral Copulation through Fear or Force
Oral copulation happens when you use force or fear to establish contact between your mouth and another person’s sexual organs against the person’s will. Both PC 287 and PC 289 require the use of force or fear to commit a sexual act against another person’s consent.
PC 287 is also a felony offense, and its conviction carries an order to register as a sex offender.
Find an Experienced Criminal Defense Lawyer Near Me
A charge for forcible sexual penetration can cause you a lot of stress and confusion, especially if you have the alleged victim’s consent or face false accusations. However, a skilled defense attorney can help you overcome your anxiety and fear and develop a solid defense against your charges for a favorable resolution of your case.
We can also defend your rights at Monterey Criminal Attorney and help you fight until you are satisfied with the result. Contact us at 831-574-1791 if you face charges under PC 289 at Monterey. Let us review the facts of your case to explain your legal situation and options.
