The California Law Enforcement Department takes sex offenses quite seriously. Any conviction of a sex crime, including forcible sexual penetration, can result in a lengthy imprisonment term and other adverse consequences.
This is why building a robust defense strategy is paramount if you have been charged with this criminal offense. We at Chula Vista Criminal Attorney can help you do this. Our main goal is to help defendants facing criminal charges in Chula Vista build proper defense strategies and get the most favorable outcomes in their cases. We can help you avoid a criminal conviction, and all the adverse consequences that come along with it.
In this article, we will discuss all you need to know about this criminal offense. We will highlight what California criminal law says about it, what the prosecutor must prove for you to be convicted, and the penalties you may face upon conviction. We will also discuss some possible legal defenses to it and other California criminal offenses related to it. If, after reading this article, you will still have more questions about this criminal offense, we invite you to contact us at Chula Vista Criminal Attorney for professional legal help.
What is Forcible Sexual Penetration?
PC 289 is California's primary law on this offense. PC 289 defines forcible sexual penetration as the act of penetrating the anus or vagina of someone else while utilizing a foreign object and without his/her consent.
This criminal offense is categorized as a sex crime. Here are some examples of scenarios that may result in criminal charges for this offense:
- A man puts his finger inside the vagina of a woman without obtaining her consent
- A woman inserts a sex toy inside the vagina of a female child
- A woman is forced to use a dildo at a crime scene
What the Prosecutor must Prove for you to be Convicted
California criminal law states that the burden of proof is on the prosecution, and the standard of proof is beyond a reasonable doubt. Simply put, the prosecutor has the legal obligation to prove your guilt, and for him/her to do so, he/she must attain the standard of beyond a reasonable doubt. Neither the judge nor the jury, whichever is the case, should doubt your guilt.
There are certain elements that the prosecutor must prove in any criminal lawsuit to warrant a conviction. These elements are the constituent parts of the criminal offense. The prosecutor must prove all of these elements to the standard of beyond a reasonable doubt.
In a criminal lawsuit for forcible sexual penetration, the prosecutor must prove each of the following elements to the standard of beyond a reasonable doubt:
- You sexually penetrated the anus or vagina of another person
- You utilized a foreign object to penetrate the victim sexually
- You didn't obtain consent from the alleged victim
- You used force or threats of force to penetrate the victim sexually
Most prosecutors in Chula Vista fail to attain this high standard when proving each of the above-listed elements. Note that you will be acquitted if the prosecutor does not reach the standard of beyond a reasonable doubt when proving any of these above-listed elements. Below, we discuss each of these elements comprehensively:
You Sexually Penetrated the Anus or Vagina of Another Person
The prosecutor must prove, to the standard of beyond a reasonable doubt, that you sexually penetrated the anus or vagina of another person. California criminal law defines sexual penetration as any act:
- That may cause the victim to penetrate the anal or genital part of the defendant or someone else, regardless of how slight the penetration may be
- That may cause the anal or genital part of the alleged victim to penetrate, regardless of how slight the penetration may be
When proving this element, the prosecutor might convince the judge or jury that you sexually penetrated the victim for sexual arousal or gratification or as a form of abuse. The prosecutor doesn't need to show that the sexual penetration was deep. Also, if the victim is female, you can still be convicted even if you only penetrated the outer lips of the vagina, i.e. the ‘labia majora’ and not the actual vagina.
You Used a Foreign Object to Sexually Penetrate the Alleged Victim
The prosecutor must prove that you used a foreign object to sexually penetrate the victim to the standard of beyond a reasonable doubt. Here, a foreign object means virtually any other object, which may include a body part but not any sexual organ.
For instance, the prosecutor might tell the judge or jury that you used your finger to penetrate the victim sexually. Or, he/she can tell the judge or jury that you inserted a bottle into the victim's vagina.
Note that you may neither be charged with nor convicted of this criminal offense if you penetrated the alleged victim with your sexual organ, such as your penis. In such instances, you will face charges for the criminal offense of rape.
You Did Not Obtain Consent from the Victim
The prosecutor must prove, to the standard of beyond a reasonable doubt, that you did not obtain consent from the victim before committing the act of sexual penetration. Lack of consent is a common element that the prosecution must prove in any criminal lawsuit for a sexual offense. You will be acquitted if you have any evidence showing that the victim consented to the sexual penetration.
To prove to the judge or jury that you obtained consent from the victim, you must illustrate that the victim was capable of understanding the nature of the sexual penetration. You must also show the judge or jury that the alleged victim gave you his/her consent voluntarily and freely.
You will be convicted for this criminal offense if evidence shows you obtained consent from the victim by threatening him/her or inflicting force, fear, or violence on him/her. Moreover, note that as per California criminal law, certain individuals are considered incapable of giving consent to sexual penetration. These individuals include:
- Minors
- Disabled persons
- Unconscious persons
- Intoxicated persons
The prosecutor is not required to prove a lack of consent if the alleged victim is any of the above-listed individuals. In such cases, you will be convicted as long as the prosecutor shows you sexually penetrated the victim while using a foreign object.
Moreover, take note that certain circumstances that may be present in your case do not prove you obtained consent from the victim, such as:
- You were or had been dating the victim
- You’ve had previous sexual encounters with the victim
- You were or had been married to the victim
- The victim requested you to wear a condom before sexually penetrating him/her
You Used Force or Threats of Force to Sexually Penetrate the Victim
The prosecutor must prove, to the standard of beyond a reasonable doubt, that you used force or threats of force to sexually penetrate the victim. To prove this element, the prosecutor might tell the judge or jury that:
- You inflicted physical force, which made the victim incapable of resisting the sexual penetration
- You acted violently towards the victim
- You implied or directly made threats of force, retribution, violence, hardship, or danger to the victim should he/she not consent to the sexual penetration
- You threatened to injure the victim should he/she not consent to the sexual penetration
- You threatened to retaliate if the victim refused to consent to the sexual penetration
However, the prosecutor does not need to prove this element if the victim was a:
- Minor
- Disabled person
- Unconscious person
- Intoxicated person
In such cases, all the prosecutor needs to prove are the first two elements:
- You sexually penetrated the anus or vagina of the victim
- You used a foreign object to penetrate the victim sexually
You would be convicted as long as the prosecutor proves these two elements to the required standard. The prosecutor does not need to show that you never obtained consent from the victim or used force or threats of force to penetrate him/her sexually.
The Punishments for Forcible Sexual Penetration
The criminal offense of forcible sexual penetration is categorized as a felony. You will face the following punishments upon conviction:
- An imprisonment term of three, six, or eight years
- A fine of up to $10,000
Sometimes, the judge may impose a sentencing enhancement, especially if there are aggravating factors in your case. As a result, this will lengthen your imprisonment term.
Can the Judge Sentence you to Probation?
You may be wondering if the judge can place you on probation instead of committing you to prison if you have been convicted of forcible sexual penetration. Unfortunately, this is not possible. A state prison sentence is a mandatory punishment for individuals convicted of this criminal offense.
However, the judge can place you on formal probation if the alleged victim was a disabled person. During the probation period, you will be expected to abide by certain terms and conditions, such as:
- Reporting to a probation officer regularly
- Performing community service
- Abstaining from drugs or alcohol
- Attending counseling sessions
- Paying court costs
- Not being involved in any other unlawful activities
If you do not comply with these conditions, the judge will revoke the probation order and commit you to prison. Also, note that it is not automatic to be placed on probation simply because the victim was a disabled person. It is the discretion of the judge to place you on probation. The judge will consider any aggravating factors present in your case and your criminal history to determine your eligibility for probation.
Will you Receive a Sentencing Enhancement if the Victim was a Child?
The judge will lengthen your prison term if the alleged victim was a child. California criminal law imposes the following punishments for forcible sexual penetration involving minors:
- A state prison term of 6, 8, or 10 years if the victim is 14 years or older
- An imprisonment term of 8, 10, or 12 years if the victim is below 14 years old
Mandatory Sex Offender Registration After Being Convicted
The court will require you to register as a sex offender after being convicted for forcible sexual penetration. The period the judge will require you to register as a sex offender will vary depending on the nature of your case. This period is usually between 10 – 20 years. Sometimes, the judge may order you to register as a sex offender for life.
Moreover, you will be required to renew and update your registration yearly. You must also renew your registration whenever you change your residence.
Are there any Negative Immigration Consequences of a Conviction for Forcible Sexual Penetration?
Forcible sexual penetration is categorized as a crime involving moral turpitude. Therefore, it has negative immigration consequences for non-citizens.
A non-citizen who has been convicted for this offense may get deported. Or, he/she may become marked as inadmissible.
Will you Lose your Gun Rights after being Convicted for Forcible Sexual Penetration?
As earlier explained in this article, forcible sexual penetration is categorized as a felony. California criminal laws prohibit convicted felons from owning or possessing firearms.
This means that you will automatically lose your legal right to own or possess a gun after you’ve been convicted of this criminal offense. Moreover, if there is evidence showing you used a gun to threaten the victim, the judge may enhance your sentence.
Defending Criminal Charges for Forcible Sexual Penetration
Don't give up if you are facing criminal charges for this offense. Experienced sex crime defense attorneys have the technical know-how to fight your charges and avoid a conviction.
Here are some examples of possible legal defenses you can use to fight criminal charges for this offense:
- You obtained consent from the victim
- You had a reasonable belief that the victim consented to the sexual penetration
- False accusations
Below, we briefly discuss each of these defenses:
You Obtained Consent from the Victim
As explained earlier in this article, no consent is one of the key elements that the prosecutor must prove for you to get convicted for this offense. You will be acquitted if you prove that you obtained consent from the victim.
In most forcible sexual penetration criminal lawsuits, prosecutors find it hard to show the victim never consented to the sexual penetration. This is especially true if the defendant was in an intimate relationship with the victim.
Remember, the standard of proof in California criminal cases is beyond a reasonable doubt. You will be acquitted if the prosecutor cannot prove to this standard that the alleged victim never consented to the sexual penetration.
You had a Reasonable Belief that the Alleged Victim Consented to the Sexual Penetration
Even though the prosecutor might successfully prove the element of lack of consent, it can be a great defense strategy to demonstrate to the judge or jury that you had a reasonable belief that the alleged victim consented to the penetration. For instance, you can tell the judge or jury that the victim said something or behaved in a particular manner, making you falsely believe that he/she gave his/her consent to the sexual penetration.
As a general rule, the prosecutor must clearly show that there was no consent. You will be acquitted if there are doubts as to whether or not the alleged victim consented or if you can show that you had a reasonable belief that the alleged victim consented to the sexual penetration.
False Accusations
Like any other sex crime, you might have been falsely accused. False accusations are pretty common in California sex crime lawsuits.
The person accusing you might have been your former or current partner, and his/her motives might be jealousy, hatred, anger, or revenge. Or, it can be a romantic or business rival, your colleague or boss at work, or a close family member or relative of your current or former partner. In fact, anyone with a grudge against you can falsely accuse you of forcible sexual penetration.
To succeed in using this defense, you will have to provide evidence showing you were falsely accused. Your attorney can help you do this. For instance, you can rely on physical and electronic evidence as well as alibis to prove false allegations.
Forcible Sexual Penetration and Related Offenses
Certain California sex crimes are usually charged alongside or as an alternative to forcible sexual penetration. Here are some examples of these sex crimes:
- Forcible oral copulation
- Rape
- Sexual battery
Below, we discuss each of these sex crimes briefly:
Forcible Oral Copulation
PC 287 is California’s primary law on forcible oral copulation. The legal definition of forcible oral copulation is quite similar to forcible sexual penetration. The key distinction between these two offenses is the nature of the sexual activity involved. Forcible oral copulation involves oral sex, while forcible sexual penetration involves sexual penetration.
In most sex crime lawsuits, there are often accusations that the defendant performed several sexual acts on the alleged victim. This is why you may end up getting charged with forcible oral copulation alongside forcible sexual penetration.
This criminal offense is categorized as a felony. Its punishment is a state prison term of three, six, or eight years. The judge might enhance your imprisonment sentence by twelve years if the alleged victim was a minor.
Rape
Rape is one of the most common California sex crimes. California's primary law on rape is Penal Code 261. Penal Code 261 defines rape as nonconsensual sexual intercourse accomplished through threats, fraud, or force.
Forcible sexual penetration is quite similar to rape. The major distinction between these two offenses is that while rape involves sexual intercourse, forcible sexual penetration involves penetration with a foreign object. You would be charged with the criminal offense of rape if you used your genital or private body part to penetrate the victim sexually.
As this article explains, most California sex crime lawsuits involve defendants accused of several sexual acts. Besides getting charged with the criminal offense of forcible sexual penetration, you might face additional charges for rape.
The criminal offense of rape is categorized as a felony. Its penalty is a state prison term of three, six, or eight years.
Sexual Battery
Penal Code 243.4 is California’s primary law on sexual battery. The criminal offense of sexual battery is also referred to as sexual assault.
According to Penal Code 243.4, touching another person's intimate body parts without obtaining their consent is unlawful. To be convicted of this offense, the prosecutor is required to prove to the judge or jury that you touched someone else's intimate body parts without his/her consent, for sexual arousal or gratification, or as a form of sexual abuse.
This criminal offense is categorized as a wobbler. This means that the prosecutor can charge it as either a misdemeanor or a felony, depending on his/her discretion. The punishment for misdemeanor sexual battery is a jail term of up to one year or a fine of up to $2,000. The penalty for felony sexual battery is a state prison term of up to four years or a fine of up to $10,000.
Compared to forcible sexual penetration, a conviction for sexual battery carries lighter punishments, especially if it is charged as a misdemeanor. Depending on the facts and circumstances of your case, your attorney can negotiate a plea bargain to reduce your forcible sexual penetration charges to sexual battery.
Find a Chula Vista Criminal Defense Lawyer Near Me
Suppose you or your loved one has been charged with the criminal offense of forcible sexual penetration. In that case, we invite you to contact us at Chula Vista Criminal Attorney for a free consultation. We will assist you to build a robust defense strategy to fight your charges. We have the technical know-how and skill to help you fight your charges.
One of our primary goals is to help defendants in Chula Vista facing criminal charges for sexual offenses receive the most favorable outcome. Call us today at 619-877-6894 to discuss your case confidentially with an attorney.