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Sodomy

California Penal Code Section 286 covers the crime of sodomy. Sodomy is defined as sexual conduct consisting of contact between the penis of one person and the anus of another person.[1] In addition, any sexual penetration, however slight, is sufficient to complete the crime of sodomy.[2]

What constitutes the crime of sodomy?

There are different types of crimes of “oral copulation” covered under this statute. The difference lies in the age of the victim and the defendant, whether force or fear or fraud was used in the commission of the crime, and the status of the victim when the crime of was committed (i.e. unconscious).

The following are the specific crimes covered under this statute:

  1. Sodomy with Person Under 14[3]
  2. Sodomy with Minor and Defendant is 21 Years Old or Older[4]
  3. Sodomy with a Minor (under 18)[5]
  4. Sodomy by Force Fear or Threats[6]
  5. Sodomy in Concert[7]
  6. Sodomy of an Intoxicated Person[8]
  7. Sodomy of an Unconscious Person[9]
  8. Sodomy of a Disabled Person[10]
  9. Sodomy of a Disabled Person in a Mental Hospital[11]
  10. Sodomy by Fraud[12]
  11. Sodomy While in Custody[13]

Sodomy with Person Under 14 – Penal Code §286 (c)(1)

To be guilty under this statute, the prosecution needs to prove that:

  • The defendant participated in an act of sodomy with another person
  • At the time of the act, the other person was under the age of 14 years and was at least 10 years younger than the defendant

Consent from the person under the age of 14 is not a defense in this case. And it is also not a defense even if the defendant believed that the other person is someone over the age of 14.[14]

This is a separate and distinct crime from Penal Code §288 (a), otherwise known as lewd and lascivious acts with a child under 14, because of the specific definition of “sodomy”.

Sodomy with Minor and Defendant is 21 Years Old or Older – Penal Code (b)(2)

To be guilty under this statute, the prosecution needs to prove that:

  • The defendant participated in an act of sodomy with another person
  • The defendant was at least 21 years old at the time of the act
  • The other person was under the age of 16 years at the time of the act

In this case, it is a defense if the defendant reasonably and actually believed that the other person was 18 years old or older.[15] However, it is not a defense if the defendant knew that other person was under the age of 16 and that person gave their consent to the act.

Sodomy with a Minor (under 18) – Penal Code (b)(1)

To be guilty under this statute, the prosecution needs to prove that:

  • The defendant participated in an act of sodomy with another person
  • The other person was under the age of 18 years at the time of the act

In this case, it is a defense if the defendant reasonably and actually believed that the other person was 18 years old or older.[16] However, it is not a defense if the defendant knew that other person was under the age of 18 and that person gave their consent to the act.

Sodomy by Force Fear or Threats – Penal Code §286 (c)(2), (3), (k)

To be guilty under this statute, the prosecution needs to prove that:

  • The defendant committed an act of sodomy with another person
  • The other person did not consent to the act
  • The defendant accomplished the act by force or fear

OR

  • future threats of bodily harm

OR

  • threat of official action

Force or fear includes force, violence, duress, menace, or fear of immediate and unlawful bodily injury to someone. An act is accomplished by force if a person uses enough physical force to overcome the other person’s will.[17] Duress means a direct or implied threat of force, violence, danger, hardship, or retribution that causes a reasonable person to do or submit to something that he or she would not otherwise do or submit to.[18] Retribution is a form of payback or revenge. Menace means a threat, statement, or act showing an intent to injure someone.[19]

An act is accomplished by fear if the other person is actually and reasonably afraid or he/she is actually but unreasonably afraid and the defendant knows of his/her fear and takes advantage of it.[20]

Future threats of bodily harm means threatening to retaliate against someone when there was a reasonable possibility that the threat would be carried out. A threat to retaliate is a threat to kidnap, unlawfully restrain or confine, or inflict extreme pain, serious bodily injury, or death.

Threat of official action means threatening to use the authority of a public office to incarcerate, arrest, or deport someone. A public official is a person employed by a government agency who has the authority to incarcerate, arrest, or deport. The other person must have reasonably believed that the defendant was a public official even if defendant was actually not.

In this case, it is a defense if the defendant actually and reasonably believed that the other person consented to the act.

Sodomy in Concert - Penal Code §286 (d)

To be guilty under this statute, the prosecution needs to prove that:

  • The defendant personally committed sodomy and voluntarily acted with someone else who aided and abetted its commission

OR

  • The defendant voluntarily aided and abetted someone else who personally committed sodomy

Simply put, “in concert” is committing a crime with another person (somewhat similar in the situation of gang rape). It is not necessary that the defendants in this case had planned or schemed with one another to commit sodomy.

Sodomy of an Intoxicated Person - Penal Code §286 (i)

To be guilty under this statute, the prosecution needs to prove that:

  • The defendant committed an act of sodomy with another person
  • The effect of a/an intoxicating/anesthetic/controlled substance prevented the other person from resisting
  • The defendant knew or reasonably should have known that the effect of that substance prevented the other person from resisting

A person is prevented from resisting if he or she is so intoxicated that he or she cannot give legal consent. In order to give legal consent, a person must be able to exercise reasonable judgment. In other words, the person must be able to understand and weigh the physical nature of the act, its moral character, and probable consequences. Legal consent is consent given freely and voluntarily by someone who knows the nature of the act involved.

The defendant is not guilty if they believed in good faith that the other person could reasonably give consent, even if that belief was wrong.[21]

Sodomy of an Unconscious Person - Penal Code §286 (f)

To be guilty under this statute, the prosecution needs to prove that:

  • The defendant committed an act of sodomy with another person
  • The other person was unable to resist because he/she was unconscious of the nature of the act
  • The defendant knew that the other person was unable to resist because he/she was unconscious of the nature of the act

A person is unconscious of the nature of the act if he or she is unconscious or asleep or not aware that the act is occurring/ or not aware of the essential characteristics of the act because the perpetrator tricked, lied to, or concealed information from the person/ [or] not aware of the essential characteristics of the act because the perpetrator fraudulently represented that the oral copulation served a professional purpose when it served no professional purpose.[22] It is important to note that total unconsciousness is not necessary to be found guilty of this crime.

Sodomy of a Disabled Person – Penal Code §286 (g)

To be guilty under this statute, the prosecution needs to prove that:

  • The defendant committed an act of sodomy with another person
  • The other person had a mental disorder/developmental or physical disability that prevented him/her from legally consenting
  • The defendant knew or reasonably should have known that the other person had a mental disorder/developmental or physical disability that prevented him/her from legally consenting

A person is prevented from legally consenting if he or she is unable to understand the act, its nature, and possible consequences.[23]

Sodomy of a Disabled Person in a Mental Hospital - Penal Code §286 (h)

To be guilty under this statute, the prosecution needs to prove that:

  • The defendant committed an act of sodomy with another person
  • The other person had a mental disorder/developmental or physical disability that prevented him/her from legally consenting
  • The defendant knew or reasonably should have known that the other person had a mental disorder/developmental or physical disability that prevented him/her from legally consenting
  • At the time of the act, both people were confined in a state hospital or other mental health facility

A state hospital or other mental health facility includes a state hospital for the care and treatment of the mentally disordered or any other public or private facility approved by a county mental health director for the care and treatment of the mentally disordered.[24]

Sodomy by Fraud – Penal Code §286 (j)

To be guilty under this statute, the prosecution needs to prove that:

  • The defendant committed an act of sodomy with someone else
  • The other person submitted to the sodomy because he/she believed the defendant was someone he/she knew, other than the defendant
  • The defendant tricked, lied, used an artifice or pretense or concealed information, intending to make the other person believe that he was someone he/she knew, while intending to hide his own identity

Simply put, the defendant lied about their identity or used some trick to hide their identity to be able to have anal sex with another person.

Sodomy While in Custody - Penal Code §286 (e)

To be guilty under this statute, the prosecution needs to prove that:

  • The defendant participated in act of sodomy with another person
  • At the time of the act, the defendant was confined in a state prison, local detention facility

A state prison is any prison or institution maintained by the Department of Corrections and Rehabilitation. A local detention facility includes any city, county, or regional jail or other facility used to confine adults or both adults and minors.

Penalties

Out of the crimes provided under this statute, three are wobblers, meaning they can be charged as either a misdemeanor or a felony. These are Sodomy with a Minor (under 18), Sodomy While in Custody, and Sodomy of a Disabled Person in a Mental Hospital. The rest of the crimes provided under this statute are charged as felonies.

If the victim is under 14 years old, the penalty is prison sentence for 3, 6, or 8 years in the California state prison. If the act was done with force of fear against a victim under 14, the penalty is imprisonment in the state prison for 9, 11, or 13 years. If the act was done with force of fear against a victim 14 years old or older, then the penalty is 7, 9, or 11 years.

If acting in concert with another person and force or fear was used, the penalty is imprisonment in the state prison for 5, 7, or 9 years. And while acting in concert with another while the victim is under 14 and force or fear was used, the penalty becomes imprisonment in the state prison for 10, 12, or 14 years. If the victim is 14 and above, the penalty is imprisonment in the state prison for 7, 9, or 11 years.

The rest of the crimes under this statute are punishable as felonies that and carry with it the penalty of imprisonment in state prison for 3, 6, or 8 years.

In addition to imprisonment, all of the listed crimes under this statute, whether they are charged as misdemeanors or felonies, if found guilty, you will need to register as a sex offender. For misdemeanors and those felonies committed without force, registration is for a minimum of 10 years. Those who were convicted of sodomy with a person incapable because of a physical or mental disability or who were convicted of sodomy with a minor under 14 years of age and more than 10 years younger, without the use of force, the registration period is for a minimum of 20 years. The rest of the crimes carries with it lifetime registration.

Possible Defenses

The most common defense is “good faith” meaning the defendant believed that under applicable circumstances, the minor was actually of legal age (18 or older), or the other person could legally give consent. However, “good faith” is not an acceptable defense under particular crimes under Penal Code §286.

Good faith as to age of victim:

  • Sodomy with a Minor (under 18) - Penal Code §286 (b)(1)
  • Sodomy with a Minor and Defendant is 21 Years old or Older – Penal Code §286 (b)(2)

Good faith as to consent given by victim:

  • Sodomy by Force, Fear, or Threats – Penal Code §286 (c)(2)(A) (NOTE: the victim must not be a minor for this defense to be applicable)
  • Sodomy of an Intoxicated Person – Penal Code §286 (i)

There other possible defenses depending on the circumstances of each case such as false accusations, mistake as to the defendant’s identity, statute of limitations, insanity, etc.

No Judgment, Only Professionalism

If you have been accused or charged with the commission of any of the crimes covered under California Penal Code §286, the repercussions are not only serious but could also be potentially life-ruining. It is all-important to hire an experienced, and aggressive and seasoned private West Covina defense lawyer to fight your case. We always make our clients feel right at home and we encourage you to take comfort in the fact that you have a dedicated advocate on your side at Coimbra Law Firm, APC. Our highly-experienced lawyers at Coimbra Law Firm, APC will help ensure that your Constitutional rights are protected. Each of our clients will receive personalized attention, complete discretion, and a trained staff working to provide the best legal assistance available. Our only job is to defend you with the maximum competence, diligence, and zealousness. Do not hesitate to call (626) 827-7222 for the representation you need.


[1] California Penal Code §286 (a)

[2] Id.

[3] California Penal Code §286 (c)(1)

[4] California Penal Code §286 (b)(2)

[5] California Penal Code §286 (b)(1)

[6] California Penal Code §286 (c)(2), (3), (k)

[7] California Penal Code §286 (d)

[8] California Penal Code §286 (i)

[9] California Penal Code §286 (f)

[10] California Penal Code §286 (g)

[11] California Penal Code §286 (h)

[12] California Penal Code §286 (j)

[13] California Penal Code §286 (e)

[14] People v. Olsen (1984) 36 Cal.3d 638 [205 Cal.Rptr. 492, 685 P.2d 52]

[15] People v. Hernandez (1964) 61 Cal.2d 529, 535–536 [39 Cal.Rptr. 361, 393 P.2d 673]

[16] People v. Scott (2000) 83 Cal.App.4th 784, 800–801 [100 Cal.Rptr.2d 70]

[17] People v. Griffın (2004) 33 Cal.4th 1015, 1023–1024 [16 Cal.Rptr.3d 891, 94 P.3d 1089]

[18] People v. Leal (2004) 33 Cal.4th 999, 1004–1010 [16 Cal.Rptr.3d 869, 94 P.3d 1071];

[19] California Penal Code, § 261(c)

[20] People v. Reyes (1984) 153 Cal.App.3d 803, 810 [200 Cal.Rptr. 651]

[21] People v. Lujano (2017) 15 Cal.App.5th 187, 191–192 [223 Cal.Rptr.3d 105]

[22] People v. Howard (1981) 117 Cal.App.3d 53, 55 [172 Cal.Rptr. 539]

[23] People v. Boggs (1930) 107 Cal.App. 492, 495–496 [290 P. 618]

[24] Welf. & Inst. Code, § 7100 [county psychiatric facilities], § 7200 [state hospitals for mentally disordered], § 7500 [state hospitals for developmentally disabled]

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