| California Sodomy Law & Defense
California “Sodomy” Laws: Penal Code 286
Unlawful sodomy is a crime in California, and can be filed as a misdemeanor or as a felony crime. The laws on unlawful sodomy can be found at California Penal Code 286. There are dozens of different chargeable sodomy offenses in California depending on the particular circumstances of the alleged offense .
Sodomy, Penal Code 286, 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 in California. If two adults of sound mind consent to engage in sodomy no crime has been committed.
Under Penal Code 286, the prosecution must prove there was penetration with a victim who was alive at the time of penetration. Sexual 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 sexual penetration.
Sodomy under PC 286 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 prove that sodomy was accomplished by means of 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 Sodomy Penal Code 286
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 the defendant's criminal history, the victim's age, and other factors.
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)). 286(b)(2) by force, 286(c)(1), 286(d)(2), 286(k) 286(h), 286(e), and sodomy of incompetents under 286(d)(1).
Defenses to Sodomy Crimes File under PC 286
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 obtained 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 defense attorney today.
Criminal Defense attorney Christopher Dorado represents defendants charged with sodomy (PC 286) in San Bernardino, 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.
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