Introduction

Forcible Sexual Penetration (California Penal Code section 289) is a broadly described offense because it encompasses a fairly wide spectrum of sexual crimes, such as penetration with a foreign object, digital penetration (i.e., with at least one finger), or penile penetration). It can also include the following: “oral copulation or sexual penetration with a child 10 years old or younger”; and “sexual penetration by use of force”.

In other words, this particular offense overlaps with a number of other similar sexual offenses, regardless of whether the victim is an adult or a minor. In addition, this offense is typically charged in conjunction with other sex crimes.

Next, the severity of the penalty for a conviction for this crime depends on the specific classification of the victim – e.g., a child under ten, an unconscious person, an intoxicated or drugged person, a mentally or physically disabled person – in other words, anyone who is incapable of legally consenting to such an act.

Finally, you can also be convicted if you used deceit, e.g., you pretended to be the victim’s lover or spouse (e.g., while he or she was asleep).

Needless to say, Forcible Sexual Penetration is always charged as a felony.

Sex Crimes – Forcible Sexual Penetration -- “Strikes”

Forcible Sexual Penetration, regardless of its nature of victim, will almost always be charged as a Strike Offense (California Penal Code section 667(a)&(b) and California Penal Code section 1192.7). As a result, the Deputy DA prosecuting you will seek sentencing enhancements, if possible, if you have had prior “violent” or “serious” felony convictions as defined in these preceding statutes.

California Statutes – Sex Crimes -- Forcible Sexual Penetration

California Penal Code section 289 -- Forcible Sexual Penetration

This is the primary statute that criminalizes this act, including when it’s done with a “foreign object”. It encompasses any sexual penetration that is carried out involuntarily through force/threat of force, intimidation, by violent means, through terror, or extreme pressure – either against the victim him/herself or against another person. Pen. Code § 289(a)(1)(A). 

In other words, if you, say, threaten to cause imminent harm to the victim’s child in order to sexually penetrate the victim, then you would be prosecuted under this specific criminal code.

This is also the case if you threaten to violently retaliate against the victim (or a third party) in the future, so long as a reasonable person would believe you were capable of actually doing so. Pen. Code § 289(a)(2). See also P.C. § 289(l).

Next, you can be prosecuted thereunder even if you only slightly penetrated the victim’s vagina or anus. (Doing so with your mouth or tongue will subject you to prosecution for Oral Copulation by Force or Fear (California Penal Code section 287). Pen. Code § 289(k)(1).

However, to be criminally culpable, you must have done so out of sexual desire. (If you did so simply to humiliate or harm the person for any non-sexual reason, you would be prosecuted under other Penal Code sections involving torture, assault, etc.)

Finally, “foreign object” is defined as any material object, substance, or body part that is not a sex organ. Pen. Code § 289(k)(2) & (3).

California Penal Code section 288.7(b) -- Engaging in Oral Copulation or Sexual Penetration with Child 10 Years of Age or Younger

Forcible sexual penetration against victims age 11 and up are set forth in the preceding statute. Penal Code section 288.7 applies to younger victims. Juveniles cannot be charged under this statute.

Sex Crimes Convictions -- Forcible Sexual Penetration

California Penal Code section 289

Convictions under this statute vary depending on the type of victim but all involve prison time. In the absence of extenuating circumstances, if your victim is an adult, and you sexually penetrate him or her by force or threat of force, you’ll be sentenced to three, six, or eight years. Pen. Code § 289(a)(1)(A).

But if the victim is age 13 or younger, then absent any other extenuating circumstances, you’ll get eight, ten, or twelve years. Pen. Code § 289(a)(1)(B).

If the victim is age 14, 15, 16, or 17, the low, mid, and high terms will be six, eight, or ten years, respectively. Pen. Code § 289(a)(1)(C).

If the victim is an adult and you used the threat of future retaliation against him or her, then the terms will be three, six, or eight years. Pen. Code § 289(a)(2).

The same low, mid, and high terms will apply if the victim was mentally or physically disabled and you knew or should have known the same (Pen. Code § 289(b)). The same applies if he or she was unconscious, asleep, intoxicated, or drugged (Pen. Code § 289(d) & (e)); etc.

California Penal Code section 288.7(b)

A conviction hereunder will get you 15 years to life. Actual sexual intercourse or sodomy with a child 10 years old or younger will get you 25-to-life. Pen. Code § 288.7(a).

Sex Crimes Sentencing Enhancements -- Forcible Sexual Penetration

Forcible Sexual Penetration is a “Violent-Felony” Strike pursuant to California Penal Code § 667.5.

Therefore, if you were previously convicted of a violent felony, or a “Serious-Felony” Strike as defined in California Penal Code § 1192.7, then you’ll receive a minimum five-year enhancement on the underlying sentence if this is your first Strike conviction.

Sex Crimes – Registration Requirements -- Forcible Sexual Penetration

Forcible Sexual Penetration is considered to be a Tier Two registerable offense, which will mandate a minimum of 20 years’ registration, pursuant to California Penal Code section 290.

This means anyone can look you up on California so-called Megan’s Law website.

Defenses to Sex Crimes Charges -- Forcible Sexual Penetration

To secure your conviction for this crime, a jury must find that each and every element thereof is proven beyond a reasonable doubt, as set forth in the California Judicial Council’s Criminal Jury Instructions (“CALCRIM”), which, conversely, also allow for the following defenses:

  1. the purported victim legally consented to the act;

  2. you didn’t use force, the threat of force, intimidation, duress, or the threats of future retaliation;

  3. you did threaten future retaliation, but no reasonable person would have believed you were capable of actually carrying it out;

  4. the purported victim consented and was not sufficiently intoxicated or high on drugs to legally do so;

  5. you did not know, nor reasonable should have known, that he or she was unconscious, asleep, or too intoxicated or high on drugs to resist the act;

  6. he or she did not have a mental disorder or physical disability or, alternatively, you did not know, nor should you have reasonably known, that he or she had one;

  7. you did not use fraud or deceit to obtain tacit consent to commit the act.

Please note that your status as the victim’s lover or spouse will not serve as a viable defense.

Specifically, these defenses are set forth in the following:

CALCRIM number 1045 (“Sexual Penetration by Force, Fear, or Threats -- Pen. Code § 289(a)(1), (2), (g)”);

CALCRIM number 1047 (“Sexual Penetration of an Intoxicated Person -- Pen. Code § 289(e)”);

CALCRIM number 1048 (“Sexual Penetration of an Unconscious Person -- Pen. Code § 289(d)”);

CALCRIM number 1049 (“Sexual Penetration of a Disabled Person -- Pen. Code § 289(b)”);

CALCRIM number 1050 (“Sexual Penetration of a Disabled Person in a Mental Hospital -- Pen. Code § 289(c)”);

CALCRIM number 1051 (“Sexual Penetration by Fraud -- Pen. Code § 289(f)”);

CALCRIM number 1100 (“Sexual Penetration with Person Under 14 -- Pen. Code § 289(j)”);

CALCRIM number 1101 (“Sexual Penetration with Minor: Defendant 21 or Older -- Pen. Code § 289(i)”);

CALCRIM number 1102 (“Sexual Penetration with Person Under 18 -- Pen. Code § 289(h)”); and

CALCRIM number 1128 (“Engaging in Oral Copulation or Sexual Penetration with Child 10 Years of Age or Younger -- Pen. Code § 288.7(b)”).

Example of a Sex Crimes Case – Forcible Sexual Penetration

Former Alhambra high school basketball coach gets five years in prison for underage relationship

During a seven-month period in 2015 (Feb. to Sept.), Joseph Kikuchi (then 55), an Alhambra high school girls’ varsity basketball coach and Monterey Park resident, allegedly had a sexual relationship with one his underage players. That summer, rumors of the relationship spread in the local sports community.

In September 2015, a teacher at the school notified Alhambra PD about the rumors, and an investigation culminated with Kikuchi’s arrest and prosecution on October 21, 2015.

Sixteen months later, on January 11, 2017, he pled nolo contendre to the following felonies:

a dozen counts of Forcible Sexual Penetration with a Foreign Object (Penal Code section 289);

five counts of Lewd Acts with a Minor Child (California Penal Code section 288); and

one count of Oral Copulation with a Minor (California Penal Code section 287).

In addition, he pled nolo contendre to five misdemeanor counts of Annoying or Molesting a Child Under 18 (California Penal Code section 647.6).

On February 14, 2017, he was sentenced to five years in prison and lifetime sex-offender registration.

See: da.lacounty.gov.

Sex Crimes – Example of a Celebrity Case of Forcible Sexual Penetration

Former USC gynecologist faces 60+ years in prison for allegedly sexually assaulting 21 females

Beginning in 2009, George Tyndall (then 52), a gynecologist at USC, allegedly began sexually assaulting women who came to see him for annual exams and other services. More specifically, during one four-year period alone (2011-2015), he allegedly assaulted more than 20 women (ages 17-31) in his on-campus office.

In June 2019, he was arrested by LAPD and charged with the following felony counts:

Eighteen counts of Forcible Sexual Penetration of an Unconscious Person (Penal Code section 289(d)); and

Eleven counts of Sexual Battery by Fraud (California Penal Code section 243.4(c)).

As a result, he faces sixty-four years max in a state penitentiary. His alleged crimes have received extensive national media coverage.

See: da.lacounty.gov..

A Sampling of Sex Crimes -- Forcible Sexual Assault Cases Handled by the Los Angeles Defense Attorney Law Firm (LADALF)

As of March 2021, LADALF’s chief attorney Ninaz Saffari will have been defending clients against sex-crime charges for 16 years. A substantial number of these cases have involved allegations/charges of forcible sexual assault, including the following two examples:

The “South Bay Rapist” case – facing two life sentences – 1st day of trial: all charges dismissed

People v. Corey Stewart (Torrance Courthouse): Two women came forward and claimed that our client had forcibly raped them. The first claimed Corey had essentially kidnapped her and locked her inside a large white SUV with custom locks she believed had been installed for this specific purpose, then forcibly raped her at gunpoint in an alley.

The second saw Corey’s photo splashed across the evening news on all the South Bay channels then claimed she suddenly realized he had forcible raped her years earlier when she was a minor.

As a result, Corey (a young man in his 20s) was charged with two counts of Forcible Rape (California Penal Code section 261), with two life sentences if convicted. He sat in jail awaiting trial for a year and two months without seeing sunlight even once.

Meanwhile, the local media gleefully portrayed him as the “South Bay Rapist” serial predator, and both the assigned detectives and DA’s Office eagerly expressed their ardent belief that he was just that, imploring the public to come forward to identify more victims.

But none of these people anticipated LADALF’s Ninaz Saffari. In less than three months after taking the case, she and her GPS expert (a former NSA supervisor who trained Edward Snowden) compiled devastating exculpatory evidence which proved that the first accuser had outright lied about every criminal allegation. For example, no such vehicle or firearm ever existed, and she was nowhere near the scene of the purported crime.

Her social media postings also proved that she was an inveterate con woman who regularly scammed men out of money in “lonely hearts” ploys. After detectives and prosecutors reviewed Ninaz’s evidence, they confronted the accuser who then gave them an entirely different set of lies.

As a result, on the first day of jury trial, all charges were dismissed, including from the second accuser who admitted she had mistakenly identified Corey as the culprit.

Result: After 14 months of living an almost incomprehensible nightmare, Corey went home to his family and a happy, productive life.

Ninaz remains close to him and his family to this day. As his late, greatly beloved mother – who, like the rest of his loved ones, never once doubted his total innocence – said of Ninaz: “I knew from the first time I saw her argue in court that she was a lioness who was going to fiercely protect Corey like her own cub.”

Two counts Forcible Rape/Strikes – 47 years – after 2 jury trials, reduced to misdemeanor, no jail

People v. R.T. (Downtown CCB courthouse): Just as with Corey, our client, “Robert”, was prosecuted for two counts of Forcible Rape (Penal Code section 261) with each one charged as a Strike Offense (California Penal Code section 667(a)&(b) and California Penal Code section 1192.7).

He was therefore facing a maximum sentence of 47 years (whereas Corey had faced life sentences for allegedly using a firearm and raping a minor).

Robert’s case was particularly dire because he had voluntarily made highly incriminating statements to detectives, who therefore believed they had an airtight case against him. However, just like Corey, Robert was completely innocent of all charges and so refused to take any type of deal.

Ninaz took the case all the way through a jury trial, during which her DNA experts testified that there was simply insufficient evidence to tie Robert to the crimes. Even better, Ninaz was able to prove to the jury by cross-examination that the accuser was lying about her allegations. For example, on cross examination, the accuser repeatedly, consistently, and directly contradicted statements she had made both before and at the preliminary hearing.

Unfortunately, however, because of the alleged “confession” Robert had made during his initial interrogation, the jury’s verdict was evenly split – six for conviction and the same for acquittal.

To avoid a second trial, the prosecutor offered Robert a highly attractive plea offer but he refused it, again because he was innocent. Ninaz supported his refusal and once again took the case all the way through trial.

This was an imprudent decision on the Deputy DA’s part because now Ninaz was able to show this second jury that the accuser’s testimony was egregiously contradicted by her testimony at the first trial, which contradicted her testimony at the prelim, and which in turn contradicted what she had told detectives during her initial interviews. In other words, absolutely nothing she said at any point in the proceedings was consistent with anything else she said during the same.

Not surprisingly, the prosecutor didn’t want to wait for the jury’s decision.

Result: Immediately after Ninaz’s scathing cross-examination of the accuser, the Deputy DA made an offer that even Robert couldn’t resist – a single misdemeanor count of Sexual Battery (California Penal Code section 243.4with zero jail, no sex registration, and eligibility for future expungement of the conviction.

The Los Angeles Defense Attorney Law Firm (LADALF)

For 15 years and 11 months (as of February 2021), criminal defense attorney Ninaz Saffari has been representing individuals accused of, and prosecuted for, sex crimes with unparalleled results. There is simply no other defense attorney in the entire county with her successful track record in fighting such charges – whether it’s Pre-File matters or all the way through jury trial.

The fact that most of these cases come through word of mouth is a testament to her unsurpassed achievements. For example, two years ago, she was retained by an adult client who had been charged with kidnapping and gang-raping a minor and consequently was facing multiple life sentences.

After Ninaz proved that the 16-year-old girl had blatantly lied about her accusations – after Ninaz shocked everyone in the courtroom by playing a video that proved the same at the prelim – her client, as well as his five co-defendants (including three adults who were also facing life sentences), were set free.

Word spread like wildfire throughout their wing at the Men’s Central Jail of their exoneration and release. As a result, half-a-dozen other men incarcerated in the same wing sought to retain her for their own sex-crimes prosecutions.