Forcible Sexual Penetration with a Foreign Object– California Penal Code Section 289

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California Penal Code section 289 addresses the severe crime of sexual penetration by force, fear, or threats, particularly involving foreign objects. This statute covers a range of scenarios and establishes varying levels of punishment depending on the specifics of the crime.

If you or a loved one faces accusations or charges under Penal Code section 289, it is crucial to seek legal representation as soon as possible to understand your rights and options.

Below, the experienced defense attorneys at The Law Offices of Kerry L. Armstrong, APLC, explain the key elements of Penal Code section 289, the associated penalties, and potential defense strategies for cases involving forcible sexual penetration with a foreign object.

Key Elements of Penal Code Section 289

Sexual Penetration

Sexual penetration is defined broadly under Penal Code section 289 as any penetration, however slight, of the genital or anal opening by a foreign object, substance, instrument, or device or by any unknown object.

The intent behind this penetration must be for purposes of sexual arousal, gratification, or abuse.

Against the Individual’s Will

An act must occur without the person’s consent to qualify under Penal Code section 289. The statute takes into account various circumstances where consent is impossible or invalid, including scenarios where the person has a mental disorder, developmental or physical disability, or is unconscious.

Lack of Consent

Consent is the cornerstone of sexual crimes under California law. If the accuser is incapacitated due to intoxication, mental disability, or unconsciousness, they lack the legal capacity to consent to sexual penetration. This includes situations where the person might be:

  • Asleep,
  • Heavily intoxicated, or
  • Otherwise unaware of the act occurring.

Additionally, consent obtained through trickery or fraud is considered invalid to protect individuals manipulated or deceived into non-consensual acts.

Use of Force or Fear

The use of force, violence, threats, or intimidation creates a climate of fear and submission, leading to lasting psychological trauma. This can include physical violence, verbal threats, or coercion that instills fear in the person and prevents them from freely consenting to sexual activity.

What Is Considered Forcible Penetration by Use of a Foreign Object?

A person may also face forcible sexual penetration with foreign object charges for the following outlined below. 

Penetration While the Person is Asleep or Unconscious

Forceful penetration occurs when an attacker makes entry into an unconscious or sleeping person with the use of a foreign object, and the person is not aware that the penetration has taken place.

Penetration Through Use of Physical Force

If a person uses physical force to hold down or restrain an individual while using a foreign object to penetrate their genital or anal opening, this is considered forcible penetration.

Penetration with the Individual Incapacitated by Drugs or Alcohol

Forcible penetration occurs when a perpetrator uses a foreign object to penetrate someone who is impaired by drugs or alcohol, rendering them unable to resist or comprehend the act.

Penetration by Threats of Harm

If a person uses threats of immediate bodily harm to coerce someone into allowing penetration with a foreign object, this is considered forcible penetration.

Penetration Under Duress or Coercion

When someone coerces a person into allowing a foreign object to penetrate them using psychological pressure, intimidation, or other coercive methods, this is considered “forceful penetration.” Complying under pressure does not mean that the individual has given permission.

Penetration of a Mentally Disabled Individual

If a person penetrates a mentally disabled individual with a foreign object, knowing that the person cannot legally consent due to their mental condition, this constitutes forcible penetration.

Penetration of a Child Under 14 Years of Age

If a perpetrator uses a foreign object to penetrate a child under the age of 14, this act is considered forcible penetration. Minors, especially those under 14, are deemed unable to provide valid consent to sexual acts, rendering any such act inherently non-consensual and abusive.

In addition to sexual penetration charges, a person may also be accused of aggravated sexual assault or sexual sodomy concerning a child aged ten or younger.

Sentencing and Penalties

A conviction under California Penal Code section 289 results in significant consequences. Here’s a breakdown of potential sentencing and penalties:

Base Sentence

  • Up to eight years in state prison. This is the standard sentence for a Penal Code section 289 charge, regardless of the person’s age or specific circumstances.

Enhanced Sentences

  • Accuser’s Age. The sentence increases depending on the person’s age.
    • Under 18—Sentences range from six to 12 years in state prison.
    • Under 14—The sentence jumps to a maximum of 12 years.
  • Force or Fear. If the act involved force, threats, or the person was incapacitated, the sentence can range from three to eight years in state prison.

Aggravating Factors

The sentence can be further enhanced if the crime involved:

  • Multiple perpetrators. This can significantly increase prison time.
  • Bodily harm. Injuries inflicted on the accuser can lead to harsher sentences.

In most cases, a Penal Code section 289 conviction also mandates lifetime registration as a sex offender in California. Registration as a sex offender can have profound personal and professional repercussions, impeding your job search, limiting housing options, and affecting social interactions.

Legal Defenses Against Penal Code Section 289 Charges

For defense attorneys, challenging the elements of force, fear, or the individual’s incapacity can be critical in mounting a defense.

  • The accuser actually consented. Many cases often come down to competing “he said/she said/they said” allegations. Examining the accuser’s text messages and voicemails from the time of the alleged assault can be crucial.
  • You Reasonably Believed There Was Consent. If a reasonable person in your situation would have believed there was consent, the prosecution should dismiss the case. Text messages and DM exchanges can help demonstrate each party’s state of mind.
  • You Were Falsely Accused. Combating false allegations often involves relying on alibis, surveillance videos, and other physical evidence to demonstrate that you could not have committed the crime.

Defending you may include expert testimony, psychological evaluations, or forensic analysis to dispute the prosecution’s claims.

Defend Your Rights with The Law Offices of Kerry L. Armstrong, APLC

The Law Offices of Kerry L. Armstrong, APLC, has a successful track record. Our board-certified and highly regarded criminal defense attorneys will work tirelessly to safeguard your rights and future.

We understand the stress of facing criminal charges and will support you through the legal process with compassion and expertise, offering personalized attention and tailored defense strategies for your case. Contact us today to take the first step toward clearing your name and moving forward with your life.

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Kerry L. Armstrong


Attorney Kerry Armstrong opened up his law firm in June 2007. Mr. Armstrong attended Thomas Jefferson School of Law, San Diego, California, and received his B.S. from Middle Tennessee State University. Kerry L. Armstrong became certified by the State Bar of California’s Board of Legal Specialization for criminal law in August 2020, making him one of the few criminal defense attorneys with a criminal law legal specialization certificate in San Diego County.  Between 2014 – 2019, Mr. Armstrong was selected for inclusion in the California Super Lawyers list, an honor only awarded to 5% of the nation’s attorneys.