California Penal Code sections 289(b), (c), (j): Penetration with a foreign object.

In almost all cases, except for a narrow exception noted below, this charge is a felony. It is punishable by:

If you are accused of this offense in California, you are facing very serious consequences and you should hire an attorney immediately. Most importantly: Do not speak with the police about this or any other sex crime allegation without first speaking to an attorney. 

When the victim is incapable of giving legal consent

Subdivision (b) states, “[a]ny person who commits an act of sexual penetration, and the victim is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act or causing the act to be committed, is guilty of a felony.”

In order for the prosecution to prove their case, they must prove each of the following elements beyond a reasonable doubt:

  1.  The defendant committed an act of sexual penetration with another person;
    • (“Sexual penetration” is 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.)
  2.  The penetration was accomplished by using a foreign object;
  3.  The other person had a mental disorder or a developmental or physical disability that prevented him or her from legally consenting; AND
  4.  The defendant knew or reasonably should have known that the other person had a mental disorder or a developmental or physical disability that prevented him or her from legally consenting.

A person is “prevented from legally consenting” if he or she unable to understand the act, its nature, and probable consequences.  Furthermore, a “foreign object” may be a substance, instrument, device, or an unknown object.

When the accused and the victim are both in a care and treatment facility  

Subdivision (c) states, “[a]ny person who commits an act of sexual penetration, and the victim is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act or causing the act to be committed and both the defendant and the victim are at the time confined in a state hospital for the care and treatment of the mentally disordered or in another public or private facility for the care and treatment of the mentally disordered, shall be punished by imprisonment in the a state prison, or in a county jail.”

In order for the prosecution to prove their case, they must prove each of the following elements beyond a reasonable doubt:

  1. The defendant committed an act of sexual penetration with another person;
    • (“Sexual penetration” is 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.)
  2. The penetration was accomplished by using a foreign object;
  3. The other person had a mental disorder or a developmental or physical disability that prevented him or her from legally consenting;
  4. The defendant knew or reasonably should have known that the other person had a mental disorder or a developmental or physical disability that prevented him or her from legally consenting; AND
  5. At the time of the act, both people were confined in a state hospital or other mental health facility.

A person is “prevented from legally consenting” if he or she unable to understand the act, its nature, and probable consequences.  Furthermore, a “foreign object” may be a substance, instrument, device, or an unknown object.  Finally, a “state hospital or other mental health facility” includes a state hospital for the care and treatment of the mentally disordered or any other public or private facility approved by a county mental health director for the care and treatment of the mentally disordered.

When the victim is a minor between 10 and 14 years of age

Subdivision (j) states, “[a]ny person who participates in an act of sexual penetration with another person who is under 14 years of age and who is more than 10 years younger than he or she shall be punished by imprisonment in a state prison.”

In order for the prosecution to prove their case, they must prove each of the following elements beyond a reasonable doubt:

  1. The defendant participated in an act of sexual penetration with another person;
  2. The penetration was accomplished by using a foreign object; AND
  3. At the time of the act, the other person was under the age of 14 years and was at least 10 years younger than the defendant.

“Sexual penetration” is 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.

Furthermore, a “foreign object” may be a substance, instrument, device, or an unknown object.  It is very important to note that it is NOT a defense that the other person may have consented to the act.

IF YOU OR A LOVED ONE ARE FACING ANY CHARGES  OR HAVE BEEN CONTACTED BY LAW EFORCEMENT TO DISCUSS ACCUSATIONS OF CHILD SEXUAL ABUSE, CONTACT THE LAW OFFICES OF JEROD GUNSBERG AT (323) 633-3423 OR (310) 210-0744 OR USE THIS CONFIDENTIAL FORM.