California Sodomy Laws Explained Penal Code 286 PC: Criminal Defense Attorney

California “Sodomy” Laws: Penal Code 286 PC

Unlawful sodomy is a crime in California, and can be filed as misdemeanors or felony offenses. The laws on unlawful sodomy can be found at California Penal Code 286PC. There are 48 chargeable sodomy offenses in California.

Sodomy is sexual conduct that consists of contact between one person’s penis and another person’s anus. Any sexual penetration, however slight, is sufficient to qualify as sodomy. All sodomy is not illegal, however. If two adults of sound mind consent to engage in sodomy no crime has been committed. Therefore, we look to Penal Code 286 PC to determine what elements must be met in order to constitute unlawful sodomy.

Under Penal Code 286 PC, the prosecution must prove there was penetration with a victim who was alive at the time of penetration. Even slight penetration can qualify. Penetration can be established by circumstantial evidence (for example, sperm in rectum plus additional signs of trauma or injury). Skin-on-skin contact is not required for unlawful sodomy. Therefore, if the victim is wearing underwear during anal penetration, this will still constitute penetration.

Sodomy is a general intent crime. This means that in order to be punishable by law, the defendant must have meant to commit the act that caused the harm- not necessarily the harm itself. The defendant does not need to intend that a precise harm or injury occur, just intend to commit sodomy.

The prosecution must also show that sodomy was accomplished by means or force, violence or fear, and/or performed on someone who is unable to give consent. What constitutes consent is discussed below under “Defenses”.

Punishment for the crime of Sodomy

The prosecutor will rely on several factors when determining whether to file a sodomy charge as a misdemeanor or a felony. A violation of Penal Code 286 filed as a misdemeanor is punishable by up to one year in jail. A judge may also impose an additional fine of up to $70 after evaluating the defendant’s ability to pay. A violation of Penal Code 286 filed as a felony is punishable by a year or more in prison. When determining how to file an unlawful sodomy charge, prosecutors will evaluate:

·         Age of the participants: One factor used to determine the punishment for a violation of Penal Code 286 is the age of the participants. This includes whether the victim is a minor, both participants are minors, and the age difference between participants. Severe punishments, like life imprisonment, may exist in those instances that the defendant is 18+ and the alleged victim is ten years old or younger.

·         Means used: Another factor used when determining the punishment for a violation of Penal Code 286 is the means used by the defendant when engaging the victim in unlawful sodomy. Means include force, violence, threat of injury to the victim or another, threat of retaliation, impersonation of the victim’s spouse, or threat by a public official to arrest or incarcerate the victim.

·         Condition of the victim: Furthermore, the prosecutor will also consider the state of the victim when sodomy was performed. This includes considering whether the victim was unconscious or asleep at the time of penetration, whether the sodomized victim was disabled and incapable of giving legal consent due to this disability, or whether victim was intoxicated.

·         Act was committed in concert with others: Lastly, the prosecutor will consider whether unlawful sodomy was committed by several individuals at the same time as the defendant, or whether certain individuals aided defendant in the commission of the sodomy.

If unlawful sodomy is performed during the commission of a murder, however, the defendant will be held liable under the felony-murder rule. This murder is also a special circumstance, which means defendant may face death or life imprisonment without the possibility of parole.

Closely Associated Crimes to Unlawful Sodomy (PC 286)

Closely associated crimes to California Sodomy (PC 286) include: lewd act on a child (PC 288(a)), sexual battery (PC 243.4), rape by force/fear of bodily injury (PC 261 (a)(2)), and sexual intercourse/sodomy with child 10 years or younger (PC 288.7(a)).

Defenses to Sodomy

Consent

Consent is a defense to sodomy under Penal Code 286. If the alleged victim consented to sodomy, and was not under the age of 18 at the time consent was given, the defendant will have a viable defense.

“Consent” means both individuals decided to partake in an act of sodomy of their own free will. A consenting person acts freely and voluntarily, and is also able to recognize the nature of the act in which he/she is about to engage. Consent cannot be gained by fraud; therefore, if the defendant lied to the victim in some way that made the victim want to consent, this consent will not be deemed valid.

Consent is not assumed merely because individuals have had previous sexual relations, or are currently dating or married. Additionally, minors are deemed incapable of giving consent, so this will not be a defense if the victim was underage at the time of alleged sodomy.

Reasonable, Good Faith Belief that the Minor was an Adult

If the defendant had a reasonable, good faith belief that the alleged victim was an adult at the time defendant gained consent to sodomy, this may serve as a defense. In order to be considered reasonable, the circumstances surrounding the encounter may be evaluated to determine whether an ordinary person could reasonably make a similar mistake of age.

To learn more about the crime of unlawful sodomy (PC 286), in California, including defenses to sodomy, contact a California sex crimes criminal defenseattorney today.

CriminalDefense attorney Christopher Dorado represents defendants charged with sodomy (PC 286) in the county of San Bernardino, including the cities of Redlands, Victorville, Fontana, Rancho Cucamonga, Rialto, Colton, Ontario, Yucaipa, and more. There is no charge for initial consultations and our office offers 24/7 emergency service. 909.913.3138

Christopher Dorado also represents defendant charged with Driving under the influence (California DUI)of alcohol or drugs (VC 23152(a)), and (VC 23153(a)).