SODOMY – California Penal Code Section 286

Sodomy in California

Under California Penal Code Section 286(a), the act of sodomy is defined as an act of a person penetrating the penis in the anus of another. In the past, the sodomy was considered to be “a crime against nature” and it was punishable under all circumstances. Nowadays, if two adults consent to have an act of sodomy in a private place, it is legal. However, there are certain exceptions from this rule. For example, sodomy committed upon a mentally disordered person is a crime under California law. In this case, any penetration, however slight, is enough to consider the sodomy committed. The defendant may face different penalties if he or she is convicted of this crime, for example, an incarceration in the state prison or local detention.
Below, The Margarian Law Firm will introduce you the main elements of the California Sodomy Laws. Moreover, in the resources of our site you can find detailed information about different kind of Sex Crimes in California.

1. Definition of Sodomy under California Law
2. Criminal Elements of the Crime of Sodomy in California
3. Punishment for Committing Sodomy in California
4. Defenses to the Accusations of Having Committed Sodomy in California
5. Related Articles
Additionally, we are ready to provide answers to your initial questions concerning sex crime charges in California for free.

1. What is Sodomy under California Law?
According to California Penal Code 286(a), sodomy is sexual conduct consisting of contact between the penis of one person and the anus of another person. Any sexual penetration, however slight, is sufficient to complete the crime of sodomy. However, the state does not make persons private sexual conduct a crime. It is presumed that the intercourse becomes illegal, if it was not consensual.

2. Criminal Elements of the Crime of Sodomy in California
The prosecutor can charge a person with committing a crime of sodomy in one of the following cases:
1. The intercourse was not consensual
And/Or
2. a)the second participant was the age of 18;
Or
b) one person is more than 21 years old, and the second is less than 16,
Or
c) the act was between two persons one of them is under 14 years old and there is 10 years age difference;
Or
d) the intercourse was committed by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person;
Or
e) the act was committed against the victim’s will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat.

Pursuant to California Penal Code 286 (d)(1), a person aiding or abetting the offender to commit an act of sodomy against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person or where the act is accomplished against the victim’s will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat, is punished similarly to the perpetrator.

3. Punishment for Committing Sodomy in California
Depending on the age difference between a perpetrator and a victim and whether there was consent of another side to commit sodomy, the punishment that the offender may face varies.

Pursuant to California Penal Code Section 286:
a) any person who participates in an act of sodomy with another person who is under 18 years of age shall be punished by imprisonment in the state prison, or in a county jail for not more than one year;
b) any person over 21 years of age who participates in an act of sodomy with another person who is under 16 years of age shall be guilty of a felony;
c) Any person who participates in an act of sodomy with another person who is under 14 years of age and more than 10 years younger than he or she shall be punished by imprisonment in the state prison for three (3), six (6), or eight (8) years;
d) Any person who commits an act of sodomy when the act is accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for three (3), six (6), or eight(8) years;
e) Any person who commits an act of sodomy with another person who is under 14 years of age when the act is accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for 9, 11, or 13 years;
f) Any person who participates in an act of sodomy with any person of any age while confined in any state prison, or in any local detention facility, shall be punished by imprisonment in the state prison, or in a county jail for not more than one year;
g) Any person who commits an act of sodomy, and the victim is at the time unconscious of the nature of the act and this is known to the person committing the act, shall be punished by imprisonment in the state prison for three (3), six(6), or eight (8)years.
The term “unconscious of the nature of the act” means incapable of resisting because the victim meets one of the following conditions:
(1) was unconscious or asleep.
(2) was not aware, knowing, perceiving, or cognizant that the act occurred.
(3) was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraud in fact.
(4) was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose.

The convicted will be ordered to register in the Megan’s list for lifetime.
Additionally, it should be taken into consideration that if:
a) the victim suffered a :great bodily injury”, the convicted can face additional from three (3) to six (6) years penalty enhancement,
b) the sodomy is committed by means of force, violence, or fear, or against a child under 14 years of age, the convicted can subjected to a “strike” on his criminal record.

4. Defenses to the Accusations

Your experienced and aggressive Criminal Defense Attorney can use various defenses in order to reduce or dismiss your charges, including(but are not limited to):
False accusations
Unlawful arrest
Lack of consent, for example, the defendant reasonably believed the alleged a minor was an adult.
Remember: it is not considered to be a defense if the minor consented to be involved in sodomy.
However, it is always possible that the defendant engaged in the act in good faith believe that the minor is an adult; in this case the offender is not guilty of this crime.

 

The Margarian Law Firm aggressively protects the rights of criminal defendants in California. A person is presumed innocent unless and until he or she is proven guilty beyond a reasonable doubt in a court of law. Direct approach with our clients allows us to easily obtain dismiss or reduction of the charges. Additionally, we provide a flat fee agreed upon before we begin. Feel free to contact us!

You may file your request online, by telephone or by mail. 818-553-1000

5. Related Articles

There are a variety of sex crimes that fall under the umbrella of California law, including:

Rape
Statutory Rape
Indecent Exposure
Engaging in or Soliciting Lewd Conduct in Public – California Penal Code 647(a)
Incest
Oral Copulation by Force or Fear
Pimping and Pandering Laws
Prostitution & Solicitation Laws
Sexual Battery
Internet Pornography
Sex Offender Registration

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