You will need an aggressive and reputable criminal defense lawyer if you face sodomy charges under California Penal Code §286.
A conviction under this law could ruin your life.
California Penal Code section 286 charges carry significant prison time, and a conviction under this statute means you must register as a sex offender.
San Diego criminal defense attorney Kerry L. Armstrong and his associates at the Law Offices of Kerry L. Armstrong, APLC, possess the knowledge and skill to provide you with unparalleled representation.
Dedicated to superior service and personal support, Kerry and his team have tried over 100 criminal jury trials in their collective 40+ years of defending people’s rights.
They understand what it takes to give you the best chance possible to minimize the impact a sodomy charge has on your life.
To schedule a free consultation, please contact us today.
California’s Definition of Sodomy
According to Penal Code section 286, sodomy is defined as “sexual conduct consisting of contact between one person’s penis and another person’s anus.” Any sexual penetration, no matter how minor, is enough to commit the crime of sodomy.
Sexual penetration is a broad term that refers to a variety of acts, regardless of the degree of penetration or bodily fluid exchange.
When Is Sodomy Considered a Crime?
According to Penal Code section 286, sodomy is a crime in California when:
- It involves a minor who is younger than eighteen; and
- It is accomplished through the use of force, violence, coercion, threat, or fear of immediate and unlawful bodily harm to the victim or another person; or
- It is performed on someone unable to consent due to intoxication, a mental illness, a physical disability, or unconsciousness; or
- It is done with another jail or prison inmate, regardless of their age or consent.
Essentially, the presence or absence of consent determines whether sodomy is legal, as well as the age of the persons involved.
How Does California Define Consent?
In California, “consent” is defined as positive cooperation in an act or attitude based on free will. The person must act freely and voluntarily and be aware of the nature of the act or transaction in question.
The age of consent is 18 in California, which means that a minor cannot consent to sodomy with an adult other than their spouse.
Possible Repercussions of the Sodomy Charge?
Sodomy can be charged as a misdemeanor or felony in California, depending on the circumstances. This is because sodomy is classified as a “wobbler,” which means it has a variable sentence.
Depending on the severity of the offense, the defendant’s criminal history, and other similar factors, a sodomy charge may result in fines or imprisonment, among other consequences.
Misdemeanor penalties include a maximum of one year in county jail and a $1,000 fine.
Felony penalties range from one year in jail to fourteen years in prison, depending on the specific offense and aggravating factors. Registration as a sexual offender is required.
Enhanced Penalties for Aggravating Factors
For factors that make charges of sodomy under Penal Code section 286 more serious, there are harsher penalties outlined below.
Sodomy with a Minor
- Offender over 21 and a victim under 16: A felony punishable by up to three years in state prison.
- An offender under 21 with a victim aged 16 or 17: Misdemeanor punishable by up to a year in county jail or state prison.
- Victim under 14 and over ten years younger than the offender: A felony punishable by three to eight years in state prison.
Sodomy with Force, Violence, Duress, Threats, or Fear
- If a victim is over the age of 14, and force or fear is used, the offender faces a felony punishable by seven to eleven years in state prison.
- If the victim is 14 years or older, and a threat of retaliation was used, the offender faces a felony punishable by three to eight years in state prison.
Sodomy on Someone Who Cannot Consent
- If the offender knew or should have known that the victim could not consent, they face a felony punishable by three to eight years in state prison.
- If the offender was unaware and could not reasonably have known, they face a misdemeanor punishable by up to a year in county jail.
Sodomy with a Fellow Jail or Prison Inmate
- An offender with no prior sex offense conviction faces a misdemeanor punishable by up to six months in county jail.
- An offender with a prior sex offense conviction faces a felony sentence of 16 months to three years in state prison.
Forcible sodomy is a “Three Strikes” crime because it is both violent and serious. The “Three Strikes” law requires an offender with two or more prior convictions for serious or violent felonies to face a mandatory sentence of 25 years to life in state prison for forcible sodomy.
Other Consequences of a Sodomy Charge
In addition to criminal penalties, offenders may face civil suits for damages from their victims. These lawsuits, separate from criminal proceedings, may seek compensation for medical and therapy costs, lost wages, and pain and suffering.
Civil lawsuits must be filed within two years of the incident or the date the victim discovered or reasonably should have discovered their injury due to the crime. Victims can file a lawsuit even if criminal charges were not filed or the offender was found “not guilty” during a criminal trial.
Because sodomy is a crime involving moral turpitude, non-citizens may be deported after serving their sentence. Felony convictions also result in the permanent loss of gun rights.
What Defenses Are Available Against a Sodomy Charge?
There are several different defenses for someone facing a sodomy charge that a criminal defense attorney can use:
- The act was consensual;
- The accuser was an adult at the time of the act;
- It is a false accusation;
- There is not enough evidence; and
- It is a case of mistaken identity.
It is important to consult an experienced criminal defense attorney to determine the best defense strategy based on the case’s facts.
Offenses Related to Penal Code Section 286
Some related offenses commonly charged with or associated with sodomy in California are:
- Lewd acts with a minor child (Penal Code section 288),
- Rape (Penal Code section 261),
- Gang rape (Penal Code section 264.1),
- Statutory rape (Penal Code section 261.5), and
- Sexual battery (Penal Code section 243.4).
These offenses have their own penalties and defenses. A skilled criminal defense attorney can handle these hurdles and develop a strong defense strategy tailored to the case’s specific facts.
Still Have Questions About California’s Sodomy Laws?
California sodomy law is complex and varies depending on the circumstances, so seeking legal advice is critical to ensuring you understand your rights and obligations to protect yourself and others.
If you have any questions or concerns, please contact the experienced criminal defense attorneys at The Law Offices of Kerry L. Armstrong, APLC. We can help you understand your rights and options and provide information on potential penalties and defenses to sodomy charges.
Where You Can Find Our San Diego Office Location
Kerry L. Armstrong
Rate this Post
Loading...