Arrested for Sexual Penetration with a Foreign Object (Penal Code § 289) in California?

If you’ve been arrested for sexual penetration with a foreign object under California Penal Code § 289, you’re facing one of the most serious sex crime charges in the state. This offense carries steep penalties, including substantial prison time and mandatory sex offender registration that can impact your life for decades.

Before making any statements to law enforcement or decisions about your case, it’s critical to understand exactly what this charge entails, the potential consequences, and what legal defenses may be available to you.

What is Sexual Penetration with a Foreign Object Under PC 289?

California Penal Code § 289 criminalizes the act of sexual penetration with a foreign object when it occurs without the victim’s consent or when the victim is unable to legally consent.

The law defines “sexual penetration” as:

“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.”

A “foreign object” includes any part of the body except a sexual organ, as well as objects, substances, instruments, or devices.

Key Elements Prosecutors Must Prove

For a conviction under PC 289, prosecutors must establish several specific elements beyond a reasonable doubt:

1. You committed an act of sexual penetration with a foreign object
2. The penetration was for sexual arousal, gratification, or abuse
3. The act was committed under one of these circumstances:
   • Against the victim’s will by force, violence, duress, menace, or fear
   • Against the victim’s will by threatening to retaliate
   • The victim was unable to consent due to mental or physical disability
   • The victim was unconscious or asleep
   • The victim was intoxicated and unable to resist
   • The victim was tricked into believing you were someone else
   • The victim submitted due to a threat by someone posing as a public official

Each of these circumstances constitutes a separate way of violating PC 289, with different elements that the prosecution must prove.

Penalties for Sexual Penetration with a Foreign Object

The penalties for violating Penal Code § 289 are severe and vary depending on the specific circumstances and the age of the victim:

When the Victim is an Adult

• Force or Fear: Three, six, or eight years in state prison
• Threat of Retaliation: Three, six, or eight years in state prison
• Victim Unable to Consent Due to Disability: Three, six, or eight years in state prison
• Victim Unconscious: Three, six, or eight years in state prison
• Victim Intoxicated: Three, six, or eight years in state prison
• Fraud or Trickery: Three, six, or eight years in state prison
• Threat by Public Official: Three, six, or eight years in state prison

When the Victim is a Minor

• Force Against Child Under 14: Eight, ten, or twelve years in state prison
• Force Against Minor 14 or Older: Six, eight, or ten years in state prison
• Victim Under 18: Up to one year in county jail or state prison
• Victim Under 16, Perpetrator Over 21: Felony punishment
• Victim Under 14, Perpetrator 10+ Years Older: Three, six, or eight years in state prison

Beyond imprisonment, a conviction carries these additional consequences:

• Mandatory sex offender registration (potentially for life)
• Formal probation
• Substantial fines up to $10,000
• Potential civil lawsuits from victims
• Loss of gun rights
• Potential immigration consequences for non-citizens

Sex Offender Registration Requirements

A conviction under PC 289 requires registration as a sex offender under California’s tiered registration system:

• Tier 3 (lifetime registration): Most violations of PC 289 involving force, fear, or victims unable to consent fall into this category
• Tier 2 (20-year minimum registration): Some violations involving minors
• Tier 1 (10-year minimum registration): Less serious violations

Registration requirements include:

• Registering with local law enforcement where you live
• Updating your information annually within five working days of your birthday
• Notifying authorities within five working days of any address change
• Potential restrictions on where you can live
• Public disclosure on the Megan’s Law website

These registration requirements can severely limit your housing options, employment opportunities, and damage your personal relationships long after completing any prison sentence.

Legal Defenses to PC 289 Charges

With so much at stake, mounting an effective defense is crucial. Depending on the specific circumstances of your case, potential legal defenses may include:

Consent

If the alleged victim consented to the sexual activity, this can be a complete defense to charges under PC 289. However, this defense is not available if:

• The victim was under 18
• The victim was unable to consent due to a mental disorder or developmental/physical disability
• The victim was unconscious or intoxicated

False Accusations

Unfortunately, false accusations of sexual assault can and do happen. A skilled defense attorney can investigate the alleged victim’s motives, inconsistencies in statements, and lack of physical evidence.

Insufficient Evidence

The prosecution must prove every element of the crime beyond a reasonable doubt. If they fail to do so, you cannot legally be convicted. This includes proving both the physical act and your mental state (intent for sexual gratification or abuse).

Mistaken Identity

In some cases, the wrong person may be accused of the crime due to misidentification or other circumstances.

Illegal Search and Seizure

If law enforcement violated your Fourth Amendment rights during the investigation, your attorney might be able to suppress key evidence.

Violation of Miranda Rights

If police obtained statements from you in violation of your Miranda rights, those statements may be excluded from evidence.

The Criminal Court Process for PC 289 Cases

Understanding what to expect during the legal process can help reduce anxiety:

1. Arrest and Booking: Following arrest, you’ll be photographed, fingerprinted, and may have to post bail to secure release.
2. Arraignment: Your first court appearance where formal charges are presented and you enter an initial plea.
3. Preliminary Hearing: For felony charges, the judge determines if there’s sufficient evidence to proceed to trial.
4. Pretrial Proceedings: Your attorney will investigate, file motions, and potentially negotiate with prosecutors.
5. Trial: If your case goes to trial, both sides will present evidence, and a jury will determine your guilt or innocence.
6. Sentencing: If convicted, the judge will determine your sentence based on statutory guidelines and case specifics.

This process can take months or even over a year in complex cases.

What Most People Don’t Know About PC 289 Cases

There are several important aspects of sexual penetration cases that are commonly misunderstood:

• No sexual organ required: This charge specifically involves foreign objects, not sexual organs (which would be charged under different statutes).
• Medical examinations: Legal medical procedures involving penetration are exempt, even if they involve unconscious patients.
• Spousal exception removed: Prior laws exempted spouses from certain sex crimes, but these exemptions have been removed – spouses can be charged under PC 289.
• Penetration “however slight”: The law only requires minimal penetration for the offense to be complete.
• Mental state matters: The act must be for sexual arousal, gratification, or abuse – not for some other purpose.
• Often charged with other offenses: PC 289 violations are frequently charged alongside other sex crimes like rape or sexual battery.

How The Nieves Law Firm Can Help

At The Nieves Law Firm, we understand the devastating impact that sexual assault accusations can have on your life, reputation, and future. Our approach to defending against PC 289 charges includes:

• Conducting a thorough, independent investigation of all evidence
• Identifying inconsistencies in the alleged victim’s statements
• Consulting with medical and forensic experts when necessary
• Filing strategic motions to exclude improperly obtained evidence
• Challenging the prosecution’s case at every stage
• Negotiating for reduced charges or dismissal when possible
• Preparing a compelling defense for trial, if necessary

Our team will treat you with dignity and respect throughout the process. We believe in your right to a vigorous defense regardless of the nature of the accusations against you.

Don’t face these serious charges alone. Contact The Nieves Law Firm today for a free, confidential consultation about your case. Our criminal defense attorneys will listen to your side of the story without judgment and develop a strategy to protect your rights, freedom, and future.