Forcible Sexual Penetration

Prosecutors and judges in Santa Ana prosecute forcible sexual penetration aggressively. A conviction can destroy your professional, personal, family, economic, and social life, altering your future and life forever. Fortunately, an experienced defense lawyer can help avoid a conviction and the penalties that come with it. At Darwish Law, we understand how the California criminal justice system works and how the sex charge can unfold. Our skilled legal team can use many years of combined experience to assist you in navigating the complicated legal system, putting you in the best position to protect your rights and freedom. 

Defining Forcible Sexual Penetration

Forcible penetration is a form of rape offense in California realized against the alleged victim's will using menace, coercion, violence, force, or force of illegal and immediate bodily injuries.

Common scenarios for violating PC 289 include:

• The defendant forcibly penetrating the alleged victim
• The defendant forcing the accuser to penetrate the defendant or a third party
• The accused forcing the accuser to penetrate themselves

There are numerous definitions of this crime, depending mainly on the PC 289 subsection you are accused of.

Using Fear or Force

The definition of this crime using fear or force has the facts of this crime below (the prosecutor ought to establish them before convicting you):

• You sexually penetrated another individual
• You realized the penetration with a foreign substance, instrument, object, unknown object, or device
• The accused did not agree to your conduct
• You achieved the conduct through violence, duress, fear, menace, or force of immediate and illegal bodily injuries or a future threat of bodily injuries

Here is a closer overview of the elements:

Sexual Penetration Using a Foreign Object

Under California law, sexual penetration is either of the below when executed with sexual gratification, abuse, or arousal intent:

1. Penetration of the victim's anal opening or genital
2. Causing the alleged victim to penetrate, regardless of how slight, the anal opening or genital of a third party or the accused individual
3. Causing the accuser to penetrate their anal opening or genital

A foreign object means any substance, including body parts apart from sexual organs (Penetration using another person's sexual organ is intercourse. If executed without consent can result in rape (PC 261) charges.

The legal term "slight" refers to even the most minimal form of penetration sufficient to constitute the crime. If the victim is female, sexual penetration could happen even when you did not penetrate the vagina. Labia's penetration is adequate to be prosecuted for a crime.

Sexual abuse refers to penetration intending to cause discomfort, injuries, or pain.

Absence of Consent

Like most sex offenses, the absence of consent is an essential element of this criminal activity. Consenting to the behavior means the individual acted willingly and freely and understood their conduct's nature.

Please note that you cannot use any of the facts below to prove the victim consented to forcible sexual penetration:

1. Both you and your accuser had been or were in a romantic relationship
2. The accuser requested you to use a condom
3. You and the victim are or were previously married

Forcible Penetration

To be sentenced for PC 289, the accused person must have realized the penetration using any of the below:

1. Violence
2. Force — Application of sufficient physical force that overcomes the victim's will
3. Duress — Implied or direct threats of violence, hardship, force, retribution, danger, or hardship that can result in a reasonable individual doing something they could not otherwise engage in
4. Threats of immediate and illegal bodily injuries
5. Menace — Threats, statements, or acts demonstrating the intent to harm another person
6. Threats to hit back if the accuser refuses to submit (by unlawfully confining, kidnapping, or inflicting pain, death, or severe bodily harm of another person or the victim)

Forcible Sexual Penetration of a Disabled Individual

Additionally, a defendant can be found guilty of California Penal Code Section 289 even when they did not apply duress or force. It is true if they:

• Committed sexual penetration to a person with physical or developmental disabilities or a mental health condition that hinders the accuser from comprehending the conduct's nature and the consequences, and
• Are aware or ought to have been aware that the other party's disability or disease would prevent them from lawfully consenting

Forcible Sexual Penetration of a Drunk Person

A person can also be convicted of PC 289 if they commit this crime and all the statements below are correct:

• The second party cannot resist because they took drugs or drunk alcohol
• The defendant knew or should have been aware that the second party could not consent

In this case, there are many gray areas: sexual encounters usually occur when at least one party is intoxicated.

However, in this context, individuals are deemed too drunk to agree to sexual conduct if they cannot comprehend and weigh the moral and physical nature of this sexual conduct and its probable consequences.

Forcible Sexual Penetration of an Unconscious Individual

A defendant will be sentenced for PC 289 if they:

• Sexually penetrate a person who is unconscious of the conduct' nature using a foreign object, and
• They know the person cannot resist.

As far as this law is concerned, the legal phrase "unconscious of the conduct's nature" could mean the alleged victim:

• Was asleep or unconscious
• Did not know the sexual act was occurring
• Did not did know of the sexual act's essential characteristics because the defendant lied, tricked, or hid information from them

Sentencing, Penalties, and Consequences of Violating Penal Code 289

PC 289 is a felony. It is punishable by the following penalties:

• Felony probation provided the defendant did not commit the crime using fear or force or involved an intoxicated or unconscious victim
• An eight-year prison term
• Maximum fines of $10,000

Forcible Sexual Penetration Involving a Minor Child

If the accuser were a child when the crime happened, the potential sentencing, consequences, and penalties would enhance.

If the juvenile is at least fourteen years, you risk ten-year imprisonment. On the other hand, if the child is younger than fourteen, you will spend eight, ten, or twelve (12) years in state prison.

Color of Law

Suppose a public official accomplished sexual penetration by using authority to incarcerate, deport or arrest the victim, and the victim believed the defendant is a public official. In that case, the accused will spend three, six, or eight years in state prison.

A public official can be any person employed by a government authority, including:

• Police officers
• Federal agent
• Sheriff deputy
• Border patrol
• ICE agent
• Prosecutor

The Requirement to Register as a Sex Offender

Golden State has a three-tiered sexual offender registration system that includes:

• Tier one — Requires registration as a sex offender for ten years.
• Tier two — Requires registering as a sex offender for twenty years
• Tier three requires lifetime registration as a sex offender.

Per PC 290, you should fulfill the initial reporting requirement by registering your address with the police within five days from your sentence, release, or discharge from a mental institution or a healthcare facility, depending on the earliest release into your community.

After your registration, the court will notify the California Department of Justice to monitor the reporting compliance.

Generally, under the Sex Offender Registration Act, you should update your details annually within five days of your birthday.

Other factors that will affect your registration requirement include whether:

1. You relocate
2. You are a transient
3. You are employed by or enrolled at an institution of higher learning in California
4. The judge declares you a sexually violent predator

Failing to comply with sexual registration requirements after a PC 289 conviction is a felony. You will face penalties like:

• Formal probation
• Up to $10,000 in fines
• Sixteen months, two years, or three years in state prison

Collateral Consequences of a PC 289 Charge

When an individual is charged with a California crime, the initial thought that comes to their mind is whether they will be incarcerated. Going to prison is scary. If you have a family, it means being away from your loved one. And if you are the breadwinner, a conviction could put your loved ones in a financial predicament.

However, there is more to a conviction than fines, probation, and prison time. A conviction means a criminal record that can result in severe collateral consequences that can affect your life long following serving prison time.

Typical collateral consequences of this sex crime include:

• Restrictions on coming within or living at a specific distance from specified locations like parks, beaches, and schools.
• A conviction can make it challenging to secure employment. Also, registered sex offenders are prohibited from working as professionals like educational psychologists, social workers, teachers, and ambulance attendants.
• California enforces residency limitations for registered sex offenders, including GPS tracking.
• Loss of voting rights
• Loss of professional license
• Deportation or being marked inadmissible as a non-U.S. citizen
• Challenges maintaining your current employment
• Difficulty obtaining a bank loan
• Social stigma

Legal Defenses to California PC 289

If you have been charged with PC 289, you should seek skilled legal representation immediately. Your sex defense lawyer will review the case circumstances and develop the most effective legal defense, hinging on your case circumstances. Common viable defenses include the following:

Mistaken Identity

Sometimes an alleged victim believes a person committed a sex offense against them, but they identified the wrong perpetrator. Generally, there are no witnesses, direct evidence, or anything that points to the defendant in these instances. However, prosecutors and police are quick to jump to conclusions.

Your lawyer can present a successful argument, using witnesses and evidence, that you were wrongfully arrested and falsely accused.

There was Consent

You cannot be convicted of PC 289 until the prosecution proves beyond any reasonable doubt that consent was absent. More often than not, this will be impossible.

You Thought the Victim Gave the Consent

Even when the victim failed to agree to the conduct, you could still urge that you reasonably thought they consented.

Most judges and prosecutors relate to an instance of uncertainty about sexual partners' accord to given sexual conduct.

False Accusations

False accusations can stem from jealousy, anger, or revenge.

The accuser can be a loved one of the defendant's ex-sexual partner, a business rival, or any person with resentment against them.

The most effective method to fight these allegations is relying on physical proof and alibis to prove you did not engage in the sex crime. Successful presentation of this proof can have the criminal charges dropped.

Statute for Limitations for Forcible Penetration (PC 801.1 and PC 802)

A statute of limitations is the time limit within which a prosecutor should act to charge you for violating a law.

Generally, the SOL for California sex offenses is broader than other crimes. It gives the alleged victim more time to report the sexual conduct.

Two SOLs apply to PC 289 charge, including:

• Criminal charges involving a minor can be filed any time before the victim turns 28
• Charges, where the victim is an adult, can be filed within ten years from the date of the crime

Exceptions to SOL

PC 803 allows two (2) exemptions to the SOL when prosecuting PC 289. They include the following:

Independent Corroborating Proof

The victim can bring a criminal complaint within a year from when they report to law enforcers that, while a child, they were a victim of this sexual conduct.

For the exemption to apply, all the conditions below should be satisfied:

1. The SOL per sections 801.1 and 800 have expired
2. Substantial sexual conduct was involved

If the alleged victim is above 21 years when reporting, the independent evidence should convincingly support the alleged victim's allegations.

Independent proof exists apart from a mental health expert's opinion that validates the alleged victim's allegations.

The DNA Exemption Rule

A complaint alleging forcible sexual penetration can be brought within a year from the date DNA evidence conclusively proves the suspect's identity under the conditions below:

• The defendant committed the crime before January 1, 2001, and DNA proof gathered was reviewed before January 1, 2004
• The accused committed the alleged crime after January 1, 2001, and the DNA proof gathered was reviewed within two (2) years of the crime

If any of these exceptions apply, you can be prosecuted for PC 289 even many years after you violated the law.

Legal Strategies Defense Lawyers Use to Fight the Sex Crime

Prosecution of this sex offense can have devastating effects on your life. The mandatory requirement to register as a sex offender can extend your penalties long after serving time in prison. Defending yourself against the charge requires the knowledgeable and competent legal assistance of Darwish Law. We have many years of experience representing sex crime defendants and believe that the allegations require independent investigation and early intervention.

Some of the legal strategies we use include (but are not limited to):

Negotiation with the Prosecution

The prosecution team takes PC 289 allegations seriously. Typically, the police will arrest first and then question the suspect later.

However, sometimes all needed to get the prosecution to drop the criminal charge is your defense lawyer presenting your side of the story.

Pre-trial Motions and Advocacy

Many sex crimes in California do not proceed to trial.

Sometimes defendants plead guilty for less severe penalties.

Nonetheless, with a proactive legal defense, your lawyer can file a motion to suppress evidence. Alternatively, they can persuade the prosecutor that the case against you is weak.

Use a Claim of Violation of Your Constitutional Rights

Violation of your constitutional rights can have essential and unique consequences for your case.

For instance, if the police obtained evidence following an illegal search and seizure, your attorney can file a motion to suppress the evidence that is inadmissible in court and cannot be used against you. Without the illegally acquired evidence, the prosecutor can be left lacking proof to support the charge against you, or their case against you becomes significantly weak. As a result, the prosecutor can drop the charges or acquit the case.

Using Private Polygraph Test

While a polygraph test is inadmissible in court, it can be an excellent tool for fighting sex crime charges.

If the test indicates that you are not lying, your defense lawyer can show the prosecutor the results. Generally, this results in the prosecutor reducing the criminal charge or dropping the case.

Find a Competent Sex Crime Defense Lawyer Near Me

California sex crimes are considered serious offenses, and aggressive prosecutors will not hold back in attempting to convict you. A PC 289 accusation alone can alter your life for good. Typically, these criminal charges are challenging to prosecute due to the relationship between the involved parties' mindsets during the crime. As an alleged defendant with good faith belief that your sexual conduct was consensual, you could be surprised to learn of the criminal charge filed against you.

The dedicated defense lawyers at Darwish Law understand the intricacies of PC 289 and the nature of its accusation. Consequently, we can professionally and diligently work to protect your rights. Please consult our experienced Santa Ana defense lawyers at 714-887-4810 to better understand the elements, penalties, and viable legal defenses to this crime or get answers about your specific case.