Sexual offenses attract some of the harshest penalties in California for defendants found guilty. The severities of the offenses are often linked to consequences that may extend for life, including retaining a sex offender title. Often, defendants involved in forcible sexual penetration will face a felony charge that sets them on a long and tedious process of criminal litigation. Nevertheless, seeking a fair trial is necessary by preparing a defense with a lawyer's help. When the accused liaises with a competent criminal defense attorney, he/she increases the chance of a successful case outcome. The best-case scenario will lead to an acquittal of all charges or a significant sentence reduction.

At Los Angeles Criminal Lawyer, we aim to provide the best criminal defense services for all clients facing charges in Los Angeles, California. Our highly experienced team of attorneys is happy to take on your case at any time and offer valid legal counsel to help with the Forcible Sexual Penetration charge. Moreover, we are ready to represent you in the criminal trial for the best chances of a favorable cause outcome.

The Legal Definition of Forcible Sexual Penetration

While several definitions may fit the crime of forcible penetration, the California Penal Code is the statutory reference point. Under section 289 of the code, the offense is described as forcible penetration of the vagina or anus using a foreign object.

Additionally, section 289 provides different elements of the crime that are relevant to the charge. Therefore, you may face the same charge for engaging in different activities listed under the provision. As a result,  understanding the various elements of crime chargeable for different actions is beneficial in preparing yourself for trial.

The Elements of Crime for the Prosecutor to Prove

Typically, all criminal cases impose the burden of proof on the prosecutor to adduce evidence that shows your criminal involvement. Hence, he/she must work closely with investigation officers to source all relevant details that could help build a case against you.

Nevertheless, the burden of proof is quite stringent, as an accused person will only face conviction after all criminal elements are proven. Subsequently, the prosecutor must successfully build a case for each relevant element before the judge/jury issues its verdict.

Thanks to the criminal procedure, your lawyer's role should therefore be to cast reasonable doubt on the prosecutor's arguments. He/she can do this by highlighting facts that could create a pivotal counter-argument. Thus, we recommend working closely with your defense lawyer to learn of the different tactics that the prosecutor may unleash during proceedings.

When researching the elements of the crime for forceful sexual penetration, you need to categorize your offense depending on the criminal circumstances. Doing so makes it easier to anticipate the prosecutor's argument points. The different forms of the crime and their elements are:

  1. Penetration Using Forceful/Intimidation Tactics

The most common form of the offense is using force or instilling fear on the victim to scare him/her into complying with your advances. Normally, the victim is conscious and will be able to refuse sexual advances, hence the need to use force or fear. The elements of crime in focus should prove that:

You Sexually Penetrated the Victim

Defining what penetration entails is important in this case, to help determine whether you are facing a fair accusation. The element of penetration must have been for sexual gratification, arousal, or abuse to the victim.

The description serves to exempt penetration done for reasonable purposes like gynecological medical examinations. Nevertheless, the contextual differences may still lead to a forceful crime, but the prosecutor must determine an underlying intent for gratification or abuse.

Normally, the prosecutor will consider your actions as unlawful penetration if it interfered with or entered the victim's vaginal or anal region. Moreover, you should note that the charges are applicable even when penetration to the vagina was slight. The threshold for prosecution includes any attempts to penetrate even the labia of a female victim, as it constitutes part of the vaginal opening.

Since it is often difficult to prove an accused person's mental intent, the proof of intention to achieve arousal or gratification comes from circumstantial evidence. For example, if you portrayed body reactions linked to sexual pleasure during the act, the prosecution may use the information to build an argument.

Additionally, any words you spoke as you penetrated the victim will be useful evidence to show your criminal intention. Therefore statements that express contempt or vengeance towards the victim are also admissible evidence against you.

You Lacked the Victim's Consent

The element of consent is also crucial to determine when handling the case, as it could lead to a different outcome depending on the case circumstances. Thus, if you face forcible sexual penetration charges, you need to understand what the court considers to be consent.

In return, your defense lawyer can help you assess the facts as they occurred and build a case disproving the argument of absent consent. Essentially, a person consents to the action if he/she engages in it voluntarily and in a free environment.

 Secondly, the person must understand the nature of the activity he/she is consenting to so that there is no element of deceit or trickery involved in luring him/her to agree.

During the trial, the prosecutor may call on the victim to testify and provide evidence against you. In the testimony, the victim will provide details that show the lack of consent as you advanced and engaged in forcible penetration.

Moreover, sometimes evidence material from recorded footage may help the prosecutor develop him/her arguments. For example, if audio recordings are available to show your forceful tone as the victim pleaded with you to stop the action, you will be in a tougher position to disprove it.

You will also need to remember that several circumstantial predispositions do not indicate the victim's consent. Firstly, being married to the person you forcibly penetrated does not automatically give you consent to engage in the crime. Therefore, the prosecutor can still file a criminal case against you for abusing your spouse despite the assumption of an existing intimate relationship.

Additionally, if the victim requested you to use a condom when penetrating him/her, the court cannot consider it as implied consent. Often, the request comes from the victim's safety concern and not as an agreement to engage. Subsequently, your lawyer will not build on any argument stemming from the victim's request.

On top of that, you also lack automatic consent from a victim you dated in the past. The previous engagement in a romantic and sexual relationship is not a factor for the prosecutor to consider, as long as the threshold for giving consent is unmet.

You Penetrated the Victim Using a Foreign Object

You should also note that the crime of forcible sexual penetration is not synonymous with statutory rape. The difference arises from the use of foreign objects in the crime listed under section 289 PC, as opposed to genital penetration in rape.

Hence, the prosecutor must establish that you did not penetrate the victim using your genitals but with foreign objects. The range of acceptable objects in question is wide, as different offenders use various items. For example, some offenders use bottles, work tools, or even kitchenware.

Your body parts also fall within the definition of foreign objects, provided they are not genital parts. Therefore, your fingers are foreign objects that could lead to prosecution in this crime's context.

During the trial, you should be ready for the prosecutor to provide the foreign item you used in court as exhibit evidence. For example, if you used a bottle to harm the victim, the specific bottle is produced as an exhibit for the victim or witnesses to confirm.

Usually, criminal investigations involve the collection of fingerprints and DNA evidence. Since the details are highly accurate in linking accused persons with the collected items, you will rarely have a chance to dispute the evidence.

Nevertheless, your criminal lawyer can develop counter-arguments to question the integrity of investigations. If he/she succeeds in drawing attention to the unfair investigation process, the unlawfully collected evidential sources are ruled out.

You Used Force or Intimidation Against the Victim

The final element for the prosecutor to prove is that your actions were accompanied by force to coerce the victim into complying. Proving this element is crucial for the prosecutor, as it supports his/her argument of lack of consent.

The prosecutor also focuses on the specific tactics you engaged in to refrain the victim from resistance. Some accused persons use duress to suppress the victim by issuing threats of pain infliction or future hardships. For example, you may threaten to shoot the person if he/she does not remain still.

Additionally, some defendants may use actual violence during the crime. Subsequently, you may beat the victim severely to weaken him/her and therefore repressing his/her energy to resist.

Sometimes, physical force may also prevail, where you physically overwhelm the victim by holding him/her down. Alternatively, you may have tied the person up on top of using physical force to prevent attempts of retaliation.

The court also considers menace as a form of forceful tactics used in sexual penetration. Menacing may involve indirect threats to cause harm, including brandishing a deadly weapon to the victim. Additional forms of menace include threatening statements that show an intention to cause severe injuries upon the victim's non-compliance.

Mainly, the prosecutor relies on witness testimonies to prove your use of force or intimidation on the victim. Thus, the adduced evidence may be subjective, giving your defense lawyer the chance to cast reasonable doubt on some statements.

For example, if the victim testifies that you gave him/her a scary look, your lawyer will ask for a reasonable elaboration on the definition of scary. In most cases, these shallow definitions are likely to be discarded from the lack of reliability.

  1. Forcible Penetration of Intoxicated Victims

Other cases involve forcible sexual penetration without applying physical harm but preying on intoxicated persons instead. The offense is still chargeable under section 289 (c) PC, as the lack of valid consent makes your action forcible. If you faced arrest after penetrating an intoxicated person, the prosecutor focuses on proving the following criminal elements:

The Victim was Highly Intoxicated

A person will be said to be intoxicated after using high amounts of alcohol or drugs if his/her vision and judgment is severely impaired. Thus, the high intoxication levels should prevent the victim from appreciating the nature of the sexual violation he/she faces.

You Ought  to Have Known that the Victim Could Not Consent

Some signs of a highly intoxicated victim include the person remaining still or even laughing as you forcibly penetrate using a foreign object. In most cases, the reactions are unmistakable for consent because of the lack of conscious mental awareness.

As the alleged perpetrator, you will have to work on ways to counter the prosecutor's evidence that shows your knowledge of the victim's intoxication. Your lawyer can establish several defenses to show that you could not tell the person's physical state. For example, you could argue that no apparent signs of the victim’s intoxication were available.

  1. Forcible Penetration of Unconscious Victims

Additionally, you may face charges under section 289 (d) for alleged forcible sexual penetration of unconscious persons. The definition of unconsciousness extends to different circumstances.

A victim may be unconscious if he/she is in a deep sleep that makes them unaware of their immediate surroundings. Hence, you could face prosecution despite the victim waking up midway, as long as you held him/her forcibly.

Additionally, the person may be unaware of the ongoing penetration from sedative medication or from excessive alcohol consumption. The difference between this mental state and intoxication is that the person may be completely unconscious and does not portray any reactions.

The state of being unconscious also includes circumstances where the victim may be fully awake but under a different impression of reality. The instance arises if you tricked the person into believing he/she was about to experience a different occurrence. For example, if you told the victim that you were medically certified to conduct a check-up by inserting a foreign object in the vagina or anus, there will be no consent for the action.

The prosecutor works around different evidential sources, including testimonies from witnesses or the victim. Moreover, police reports recorded after your arrest can provide further information to show your malicious intentions.

Lastly, the prosecutor must prove you knew of the victim's inability to resist based on his/her unconscious state. To do this, the prosecution may include details that show your deliberate efforts to make the person unconscious.

  1. Forcible Penetration of Disabled Victims

Lastly, section 289 also makes it a criminal offense to penetrate a person living with a disability. Different disabilities are considered when assessing your criminal activities, provided the prosecutor proves that you took advantage of the victim.

The prosecutor should prove that the victim lives with a physical or mental handicap that reduces his/her ability to understand the effects of the act. Subsequently, the prosecutor may call on a psychiatrist to provide opinion evidence that corroborated the victim's state.

Moreover, the prosecutor may also refer to medical documents like diagnosis forms and appointment sheets. The documents are often handy in proving that the victim's mental disorder prevented him/her from comprehending the nature of forcible penetration.

Additionally, the victim's circumstances do not necessarily have to prevent him/her from understanding what is going on. Sometimes, the person may simply be unable to resist or physically evade the situation. Therefore, all the factors are in the prosecutor's consideration when presenting an argument.

Penalties of Forcible Sexual Penetration

If the judge/jury finds you guilty of the offense, you will face harsh penalties that differ based on several factors. Usually, the punishment includes spending three to eight years in state prison or paying a fine of up to $10,000.

However, the judge will enhance your sentence if your victim was a minor. Hence, if the child was above fourteen years, you will face six to twelve years in state prison.

On the other hand, defendants who abused a minor below fourteen years will spend eight to twelve years in state prison.

On top of this, you will have to register as a sex offender, where the title appears in your criminal history for a specific duration.

 If you are a first-tier sex offender, you will have the title for a minimum of ten years. Second-tier offenders hold the title for a minimum of twenty years, while third-tier sex offenders have to hold the title for life.

Defenses to the Crime of Forcible Sexual Penetration

Before facing a conviction, your attorney will present several defenses that are relevant to your matter. You also want to discuss the defenses with your lawyer in advance to help you provide any missed information that could be beneficial. Some applicable defenses include:

  • You face false accusations.
  • You genuinely believed the victim consented to the actions.
  • There was actual consent that the victim now denies.

Contact a Sex Crimes Defense Attorney Near Me

Upon facing sexual offense charges, you need to partner with a credible and reliable team of attorneys to help you with the matter. The competence of your legal team often makes the difference between an acquittal and life long consequences.

At Los Angeles Criminal Lawyer, we dedicate our legal skills to clients facing criminal charges in Los Angeles, California. With our help, you can fight forcible sexual penetration allegations and increase the chances of a favorable case outcome. Call us today at 310-502-1314.