Sexual Penetration with a Foreign Object

In almost all cases, except for a narrow exception noted below, the charge of sexual penetration with a foreign object – California Penal Code Sections 289(b), (c), (j) – is a felony. It is punishable by up to eight years in state prison and carries mandatory lifetime registration as a sex offender. If you are accused of sexual penetration with a foreign object 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.

“Sexual penetration” is defined 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” may be a substance, instrument, device, or an unknown object.

For cases where 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.”

A person is “prevented from legally consenting” if he or she is unable to understand the act, its nature, and probable consequences.

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;
  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

Where 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;
  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 “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.

Where 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

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 is facing charges or have been contacted by law enforcement in LA, Los Angeles County or anywhere in the state of California to discuss accusations of sexual penetration with a foreign object or child sexual abuse, call criminal defense attorney Jerod Gunsberg in Los Angeles at (323) 633-3423 for a free and confidential consultation or get in touch via the secure contact form on this page. Help is available 24 hours a day, 7 days a week.

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