The law on the crime of sexual penetration upon a minor, also called “sexual penetration by foreign object upon a person under eighteen (18) years of age,” is found at California penal code section 289(h). This overview covers the law, punishments, and common defenses related to PC 289(h). For more information, contact our sex crimes criminal defense attorneys.
PC 289(h) Law
Any person who participates in an act of sexual penetration with another person, who is under 18 years of age, is guilty of sexual penetration of a minor (aka ‘statutory sexual penetration’) [PC 289(h) Abbrev.).
“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, sexual gratification, or sexual abuse, by any foreign object, substance, instrument, or device, or by any unknown object (PC 289(k)(1) Abbrev.).
“Foreign object,” is defined as “any substance, instrument, or device, including any part of the body, except a sexual organ” (PC 289(k)(2) Abbrev.).
“Unknown object” includes any foreign object, substance, instrument, or device, or any part of the body, including a penis, when it is not known whether penetration was by a penis or by a foreign object, substance, instrument, or device, or by any other part of the body (PC 289(k)(3) Abbrev.).
Note: Sexual penetration is charged where the victim is not certain as to the object that penetrated her or him. When the penetrating object is a man’s penis, and the victim is certain that he or she was penetration with a man’s penis, then other statutory crimes are charged, such as statutory rape, unlawful sexual intercourse, or statutory sodomy.
Also, sexual penetration of a minor charged under PC 289(h) is available when the victim attempts to consent to the sexual penetration, but his or her consent is voided because of his or her status as a minor (California’s “age of consent” is eighteen (18)).
Example: John and Jane are boyfriend and girlfriend. John is twenty-one (21) years old, and Jane is seventeen (17) year old (i.e., a “minor”). John and Jane engage in sexual conduct whereby John penetrates Jane’s vagina with his fingers. John does not force his girlfriend to engage in sexual conduct with him, but because of Jane’s age, she cannot validly consent to the sexual penetration.
Result: John may be charged with ‘statutory sexual penetration’ per penal code 289(h).
Important: When force or fear is used to accomplish sexual penetration of a minor, as opposed to voided consent due to the minor’s age, then more serious sexual penetration charges may be levied against the defendant.
PC 289(h) Punishment
Penal code 289(h) may be charged either as a felony, or alternatively as a misdemeanor in California. This means that sexual penetration of a victim under the age of 18 is classified as a “wobbler” offense (the classification of crime “wobbles” between felony and misdemeanor).
Note: Whether the defendant is charged with a felony or misdemeanor violation of PC 289(h) depends on many factors, such the age difference between the defendant and the victim, the relationship between the defendant and the victim, the harm cause to the victim, the remorse shown by the defendant, the defendant’s criminal history, and more.
Felony PC 289(h) Incarceration: When sexual penetration by object upon a minor is charged as a felony, the defendant could face up to sixteen (16) months, two (2) years, or three (3) years in prison. A probation sentence without incarceration may be available in some felony PC 289(h) cases (See Probation Sentence).
Whether the defendant receives the high term prison sentence of three (3) years, the middle term prison sentence of two (2) years, or the low term prison sentence of sixteen (16) months after a felony PC 289(h) conviction depends on many factors, including the presence or absence of any mitigating or aggravating factors present in the facts of the case.
Mitigating & Aggravating Factors: Mitigating and aggravating factors that help a judge determine what prison sentence is most appropriate after a felony conviction of PC 289(h) includes the defendant’s criminal history, the remorse shown by the defendant, the harm cause to the victim, the relationship between the victim and the defendant, the desire for prosecution from the victim (or victim’s family), and more.
Misdemeanor Jail Sentence: When sexual penetration by foreign object upon a victim under eighteen (18) years of age is charged as a misdemeanor, the defendant could face up to one (1) year in the county jail. A probation sentence, without incarceration, may also be available in misdemeanor PC 289(h) cases (See Probation Sentence).
Probation Sentence: A probation sentence is a period of supervision, as opposed to a jail or prison sentence. A probation sentence is allowed in both felony and misdemeanor PC 289(h) cases.
However, in felony PC 289(h) cases, before the defendant may be granted a probation sentence, he or she will be required to demonstrate to the court that a probation sentence, as opposed to a prison sentence, is in the best interest of justice, and “special” circumstances exists that justify a probation sentence.
“Special” Circumstances Probation: The “special” circumstances that might justify a probation sentence in a felony PC 289(h) case includes, but is not limited to, the following: the lack of criminal history of the defendant, the relationship status between the defendant and the sexual penetration victim, the desire for prosecution by the victim, the amenability of the defendant serving a probation sentence, the remorse shown by the defendant, the level of sophistication of the alleged offense, and more.
PC 1170(h) Sentencing: If the defendant is convicted of sexual penetration of a minor, and he or she is not granted probation, then the defendant must be sentenced to a California state prison, as opposed to a local county jail. Additionally, not part of the defendant PC 289(h) prison sentence may be “suspended” (aka “joint-suspended prison sentence”) or split (served partially out of prison on work release).
Fifty Percent Incarceration: Incarceration periods related to the crime of sexual penetration by foreign object upon a person under eighteen (18) years of age are eligible for fifty percent (50%) “good behavior credits.” [PC 4019]. This means that the defendant’s prison or jail sentence is cut in half, so long as he or she conducts himself or herself with ‘good behavior’ while incarcerated.
Note: The fifty percent (50%) good conduct credit applies to both felony and misdemeanor violations of PC 289(h).
Sex Offender Registration: Sex offender registration is required after a conviction for sexual penetration of a minor (under 18). The length of sex offender registration is presumptively ten (10) years for misdemeanor PC 289(h) violations and twenty (20) years for felony PC 289(h) violations. For more information, see PC 290 Registration Requirements, Termination of Sex Offender Registration (SB 384) & PC 290 Tier Levels in California.
Non-Serious, Non-Violent: Sexual penetration by foreign object against a victim under eighteen (18) is not considered a “serious” offense or a “violent” offense, at least not as those terms are defined in the California penal code at sections 1192.7 and 667.5, respectively. This means that PC 289(h) is not considered a “strike” offense under California’s Three Strikes Sentencing Law
Note: Even though PC 289(h) is not classified as a serious or violent offense, a conviction of PC 289(h) may “trigger” a third “strike” if the defendant has already suffered two prior “strikes” before his PC 289(h) conviction. A third “strike” can lead to a life sentence in California.
Crime Involving Moral Turpitude: PC 289(h) crimes are classified as “crimes involving moral turpitude.” A crime involving moral turpitude is any crime that involves deceit or is otherwise considered inherently and morally wrong.
Crimes involving moral turpitude, including PC 289(h) convictions, lead to adverse consequences for non-US citizens (i.e., deportation, denial of entry into US, etc.), licensed professionals (revocation of license), and military personnel (discharge from military).
Criminal Protective Orders: Sexual penetration of a minor under eighteen (18) will almost always require a criminal protective order in favor of the victim (i.e., no contact between victim and defendant). This is true even where the defendant and the victim are either related (incest crimes), or in a dating relationship. This criminal protective order may be modified if the court finds the victim is sufficiently protected without the order (PC 1203.3).
Additional Penalties: In addition to the punishments listed above, if found guilty of sexual penetration of a person under 18 years of age, the defendant will loss his or her firearm rights (felony cases only), possibly be sued by the victim for battery, suffer penalty fees and court fines, be ordered to pay restitution for any financial loss to the victim, long parole with extensive conditions, and more.
PC 289(h) Defenses
Common defenses in PC 289(h) cases include statute of limitations, defendant’s reasonable mistake as to the age of the victim, coerced confession, valid marriage between the victim and the defendant, illegal search and seizure, insufficient evidence to prove the defendant sexually penetrated the victim, unreliable scientific or witness evidence, jury nullification, and more.
Defense of Consent: The defense of consent is not available in a sexual penetration by foreign object upon a minor case. This is because the minor is too young to validly consent to sexual activity.
Reasonable Mistake of Age: It is a defense to a sexual penetration crime charged under penal code 289(h) to show the defendant reasonably believed the minor was of the age of consent (18). The reasonableness of the defendant’s honest mistake is considered in light of all the evidence and circumstances of the case.
Penal Code 17(b): When the defendant is charged with a felony violation of PC 289(h), he or she may move to have the court reclassify the felony charge to a misdemeanor charge.
Whether the judge will reclassify the criminal charge depends on many factors, including the age of the defendant and the age of the victim, the relationship between the victim and the defendant, the terms of any negotiated plea bargain between the defendant and the district attorney, the criminal history of the defendant and more.
Note: The defendant may petition the court to reclassify a PC 289(h) felony to a misdemeanor even over the district attorney’s objection.
Diversion Not Available: “Diversion” in any form is not available in sexual penetration of a minor cases. This includes Veteran’s Court Diversion, Judicial Diversion (PC 1001.95), and Mental Health Diversion (PC 1001.36).
Post-Conviction Relief: After a conviction for sexual penetration by foreign object upon a victim under 18 years of age, the defendant may have several post-conviction relief options, including appeal the criminal conviction, withdraw a guilty or “no contest” plea, expunge the PC 289(h) conviction, petition the court for a certificate of rehabilitation, modify probation term for misdemeanor probation, and more.
For more information on the crime of sexual penetration of a minor under 18 years of age (aka ‘statutory sexual penetration’), or California penal code § 289(h), contact our sex crimes criminal defense attorneys today for a free consultation.
Our award-winning sex crimes defense attorney have successfully handled hundreds of misdemeanor and felony sex crimes in the Inland Empire, including charges or rape, indecent exposure, termination of sex offender registration, illegal sodomy, oral copulation by force or fear, sexual battery, possession of child pornography, lewd and lascivious act upon a child, statutory rape, engaging in prostitution, engaging in public lewd conduct (PC 647(a)), reveal nude images to humiliate, and more. Call today!
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