In California, there is a low tolerance for any sex-related crimes. One of the sex-related crimes that can lead to severe punishment in California is forcible sex penetration. A successful conviction for this offense can lead to a maximum of eight years in prison and a fine amounting to ten thousand dollars. At Orange County Criminal Defense Attorney Law Firm, we are committed to ensuring that our clients get the right legal services in their sex crimes allegations. 

How Forcible Sex Penetration is Defined in California

Forcible sex penetration is a type of rape crime that falls under California Penal Code 289. This statute defines forcible sex penetration as a sexual act against the will of the victim and is accomplished by force, coercion, menace, or violence. It is also achieved through fear of unlawful bodily injury of the victim or another person.

Possible scenarios that define this kind of offense include:

  • Forcibly penetrating the alleged victim.
  • Forcing the alleged victim to penetrate himself or herself with a foreign object
  • Forcing another person to penetrate you or a third party

You can be convicted for this offense by attempting to commit any of the actions mentioned above. However, the prosecutor must prove that you had the intention to do so to prosecute you for the offense successfully. 

Elements of the Crime Under PC 289

It is essential to understand the elements of the crime that falls under PC 289 to understand the crime in a better way. This kind of crime covers several aspects. Here is a detailed view of these aspects or elements of the crime. 

By Fear or Force

The prosecutor must prove the use of fear or force during the alleged sexual penetration. The victim must be subjected to force, fear, coercion, or any other threat that would subject him or her to involuntary participation in the action.

The following is a description of the possible ways that would help a defendant accomplish his or her actions.

  • Force - This means that you used physical force to overcome the will of the alleged victim.
  • Violence - This means that you used tumultuous conduct that has sufficient intensity to cause bodily injury on the victim and such injuries appear to be evident to anyone
  • Duress – This means that you used force or threat, danger, hardship, retribution or violence that would make a reasonable person do something that he or she would not do
  • Unlawfully injuring the victim or threatening him or her.
  • A threat to kidnap, restrain, or inflict serious bodily injuries to the victim or a third party if the victim does not agree to your demands.

Sexual Penetration

Under California laws, sexual penetration is usually done to abuse the victim sexually, arouse, or gratify the perpetrator. The offense is committed through the following activities.

  • Any form of penetration, however slightit might be, on the alleged victim’s genitals or anal opening.
  • Causing the accuser to penetrate your or a third person’s genitals or anus however slight the action might be
  • Causing the accuser to penetrate his or her genitals or anus, however slight the action might be.

Please note, when a person is committing this offense for sexual abuse, it means that the penetration was intended to cause pain, discomfort, or injury to the alleged victim. 

Using a Foreign Object

A foreign object used in the penetration involves any object. This includes a part of the body other than the sexual organ. Other objects used in action can consist of the defendant’s finger, a sex toy, a bottle, or an unknown object.

Please note, penetration using a sexual organ is considered as sexual intercourse. If done without the victim’s consent, it becomes rape. Rape is prosecuted under PC 261 in California. 

If the victim is a female, the sexual penetration can be accomplished without actual penetration into the vagina. The penetration of the outer lips of the vagina or labia majora is sufficient to prosecute someone under this statute.

Lack of Consent or Against the Other Person’s Will

The action of sexual penetration must be achieved against the will of the alleged victim to be considered viable for prosecution. In legal terms, this is described as the lack of consent and is a critical element of prosecuting someone under PC 289.

For a person to agree to sexual penetration, he or she should act with an understanding of the nature of the action about to engage in. Therefore, the following situations would not confirm that someone agreed to sexual penetration:

  • When you and the alleged victim were dating or were previously dating
  • When you and the alleged victim were married
  • When the alleged victim asked the defendant to use a condom

This means if the alleged victim did not agree to the actions, but you satisfy any of the above aspects, you will still be prosecuted for forcible sexual penetration.

You might also be charged under PC 289 if you committed the offense of sexual penetration to an incapacitated person. In most cases,  perpetrators commit this offense without using fear or force since most incapacitated people are not in a position of reasonably resisting to a particular action. Incapacitated people include the following:

A Person Living with Disability

You can be guilty of violating Penal Code 289 by committing an act of sexual penetration with an individual with a mental disorder or someone whose mental or physical capacity cannot allow him or her to understand the nature of the action you are about to do. You will be considered guilty if you reasonably knew that your target victim’s disability or disorder would prevent the alleged victim from legally consenting to your actions.

An Unconscious Person

You can also be sentenced under PC 289 if you engaged in forcible or non-forcible sexual penetration with an unconscious person, and you knew that the respective person would not resit due to that reason.

The alleged victim does not necessarily have to be unconscious to make this law section suitable for its application. Unconscious of the action can also mean that the victim was asleep, unaware of the forthcoming act, or is not aware of the primary characteristics of the action since he or she was tricked or lied to by the perpetrator.

For instance, if someone is involved in a therapeutic massage and the masseuse inserts his or her finger on her vagina to get sexually aroused, this would be viable for prosecution under PC 289. The patient would be unaware of the essentials of what the masseuse is doing or what the therapeutic massage entails, making the masseuse guilty of sexually penetrating an unconscious person.

Intoxicated Person

You will be considered guilty of PC 289 if you committed an offense of sexual penetration if the following facts are accurate:

  • The victim could not resist since he or she had consumed alcohol, drugs or a different intoxicating substance
  • You reasonably knew that the other person would not consent to your action due to his or her state.

There are many gray areas when it comes to this kind of consideration since most sexual encounters under this situation occur when the people involved are intoxicated. However, with regards to PC 289, a victim is referred to be too intoxicated to agree to action if he or she cannot determine or weigh:

  • The moral or physical nature of the action (sexual penetration)
  • The consequences that might result from the action.

Please note, the fact that a person cannot make a reasonable decision does not automatically make the perpetrator guilty of Penal Code 289. For instance, if the so-called victim has a mental illness such as schizophrenia and severe manic depression, and this illness was unknown to the perpetrator, this would consider him or her innocent of the action. This will work if the circumstances surrounding the case shows that the alleged victim knew the nature of the action that the perpetrator was about to undertake. 

Penalties for PC 289 Violation

Violating PC 289 is a felony. The potential penalty that results from violating this statute include:

  • Felony probation, which is unavailable for someone involved in sexual penetration with a disabled person
  • Three, six or eight years sentence in the California state prison
  • A maximum fine of $10,000

If the victim involved in the forced sexual penetration was a minor, the potential penalty would be different from the one stated above. In that case, you will face a possible sentence of:

  • Six, eight or ten years if the purported victim was 14 years or older
  • Eight, ten, or twelve years if the so-called victim was below 14 years. 

Punishment by Registering as a California Sex Offender

In California, there is a three-tier sex registration system. The first tier requires the registrant to register for a minimum of ten years. Second-tier registrants are required to be registered for a minimum of twenty years, while third-tier offenders are required to be registered for life.

The first tier includes misdemeanor and a few felony cases, specifically those that fall under most subsection in Penal Code 289.

Tier two includes felonies, which involves the accomplishment of the act against the will of the victim by threatening or retaliation. It also consists of a situation where the victim would not consent to the actions due to physical impairment or disability.

Finally, tier three involves a situation where the perpetrator achieved the action through force or coercion. It also consists of a situation where the alleged victim is below the age of 14, is more than ten years younger compared with the perpetrator, too intoxicated to agree to the action, or is unconscious.

In that case, it means that anyone convicted under PC 289 will have to register as a California sex offender, most likely as a tier two or three registrants.

A convicted sex offender should register with the police within his or her county or city within California. The registration must be renewed after one year within five business days of the registrant’s birthday, or anytime the offender intends to relocate to a new place.

Other Consequences

Once you have been released from custody for a PC 289 conviction, you will be required to serve intensive probation for at least three to ten years. The conditions that might be imposed on you are:

  • A requirement to wear an ankle GPS tracker
  • Restriction on where to live or work
  • Completion of a sex offender treatment program
  • Night curfew
  • A prohibition from contacting certain people such as the victim and children below the age of eighteen 

Legal Defenses for Forcible Sexual Penetration Charges

Several legal defenses can help you fight your Penal Code 289 accusations. Your criminal defense attorney should be able to review the nature of your case and come up with the most effective legal arguments. Some of the suitable legal defenses that can help you fight the allegations are as follows.


Lack of an agreement is a primary aspect of prosecuting an alleged perpetrator under PC 289. The prosecutor has a burden of proving beyond doubt that no consent existed between the perpetrator and the alleged victim to make the prosecution successful. In most cases, there is a lot of uncertainty about whether the victim consented. With this kind of uncertainty, it would be hard for a prosecutor to prosecute you successfully, making a suitable option for your legal defense. 

Reasonable Belief that there Was Consent

There are situations where a person would believe that another person has consented to a particular action. If that is the case with your allegation, you can use your situation as your legal defense. The jury will understand the ambiguity that arises when sexual partners are involved in sexual relations. A reasonable belief that there was consent will be suitable enough if there is no evidence showing that you used force to achieve your goals.

False Accusation

Like other types of sex crimes, most people end up facing false accusations of sexual penetration through the use of fear or force. In most cases, the false accuser is usually a previous or current partner acting due to anger, revenge, or jealousy. It might also be a patient, friend, former partner, or business partner with a grudge against you.

You should rely on alibis or physical evidence to prove that you did not commit the crime. 

Insufficient Evidence

Insufficient evidence can be a suitable legal defense if you present your argument correctly. In most situations, overzealous police officers or investigators go to the extent of providing insufficient evidence that does not satisfy the requirements for prosecuting you under PC 289. Therefore, you have to be thorough with your investigations to highlight the specific aspects that make the evidence presented against you insufficient if you intend to rely on this argument.

Coerced Confession

Sometimes rogue police would coerce an innocent person to confess that they were involved in forcible sexual penetration during an investigation. Most police officers would force a person to admit as the actual perpetrator using force or threats. In that case, You have to adequately establish that you were forced into coerced confession to using this legal argument.

Violation of Your Constitutional Rights

You have constitutional rights as defined under the Fourth Amendment of the US constitution. These rights include reading of the Miranda rights during arrest and prohibition from unlawful search or seizures. Any law enforcement official involved in your arrest or investigation should strictly follow every constitutional right while conducting their duties. In case of any violation, you should consider this as a legal argument that would help you reduce the possible penalties that you are facing. 

Involuntary Intoxication

Intoxication is not usually a suitable legal argument to use in court. However, it can be ideal if you were intoxicated without your knowledge. For instance, you might be drugged unknowingly and end up engaging in forcible sexual penetration with the alleged victim. If you can manage to establish that you were intoxicated against your will, the court will regard your actions as involuntary and out of your control. This might prompt the jury to either reduce or drop your charges depending on the nature of your offense.

Crimes Related to California PC 289

Certain offenses are charged instead of or along with PC 289. Most of these cases share the same circumstances or background as forcible sexual penetration. They include:

Oral Copulation Using Force or Fear: PC 288a

PC 288a is the statute that makes it a crime to engage in oral copulation with a minor or someone younger than eighteen years. Oral copulation should be achieved through coercion, force, or threats to be considered as a crime.

The penalties that follow by violating this statute depend on the age of the alleged victim and the defendant. If the victim was 16 years or older, and the defendant was twenty-one years or younger, the crime becomes a wobbler. For a misdemeanor, you will face potential penalties such as misdemeanor probation, a maximum of one year in county jail, and a fine of up to $1,000.

A  felony conviction would subject you to penalties such as a maximum fine of $10,00, and a possible state prison sentence for sixteen months, two or three years. 

If the victim was below sixteen years, and the defendant was above twenty-one years, the offense becomes a felony. The possible penalties that follow include felony probation, a maximum fine of $10,000, and a state prison sentence for sixteen months, two or three years. 

Finally, If the victim was below fourteen years, and the defendant was ten years older than the alleged victim, the potential state prison sentence is increased to three, six, or eight years.

Besides the penalties described above, the perpetrator can also be required to register as a California sex offender.

Rape: PC 261

Under PC 261, rape is considered as the use of force, threats, or fraud to have non-consensual sexual intercourse with another person.

Rape is a California felony offense, and the potential penalties include a maximum of eight years in state prison and felony probation. You can also be charged with an addition of three to five years if the so-called victim suffered significant bodily while commissioning the offense.

The prison time could be increased to eleven years if the purported victim was below eighteen years or thirteen years if the victim was below 14 years of age.

Finally, you might end up with lifetime registration as a sex offender in California.

Sexual Battery: PC 243.4

Under PC 243.5, sexual battery is defined as touching the intimate part of another person against the will of that person to gratify or arouse yourself or abuse the alleged victim sexually.

Sexual battery in California is considered a wobbler. If you are convicted for a misdemeanor sexual battery without aggravating factor, you might face a maximum of six months in jail, a maximum fine of $2,000, or $3,000 if the alleged victim was your employee. You can also be charged with a summary or informal probation for a maximum of five years.

If there were aggravating factors involved in the offense, it becomes a felony. The possible penalties include:

  • Formal or felony probation
  • Two, three, or four years in prison and the possible addition of three, to five years if the alleged victim sustained significant or substantial bodily injury
  • A maximum fine of $10,000
  • Registration as a tier three sex offender for the rest of your life

Find a Criminal Lawyer Near Me

If you or your loved one is facing charges for unlawful penetration pursuant of PC 289, it is recommendable to speak to an experienced sex crime attorney at Orange County Criminal Defense Attorney Law Firm. We represent our clients to the maximum of our abilities by employing the best criminal legal defenses related to their charges. Contact us today at 714-740-7848 to learn more about your charges and how we can help you.