Incest Law & Defense
PC 285 Crimes
Information on the crime of incest is found at California penal code section 285. Basically, "incest" means to marry, or have sexual intercourse with, persons who are related to one another within a certain degree of familial relationship.
PC 285 Law
PC 285 Persons related to each of within a certain degree of consanguinity, who either marry one another, or who are fourteen years of age or older and commit fornication or adultery with each other, are guilty of incest (Abbrev.).
To find the defendant guilty of incest pursuant to PC 285, the district attorney must prove all of the following:
The defendant has sexual intercourse with another person
When the defendant had sexual intercourse with another person, both the defendant and the other person were at least fourteen years old, and
The defendant and the other person are related to each other within a certain degree of relationship
Sexual intercourse: Per penal code 285, sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis. Sexual intercourse does not include oral sex, mutual masturbation, sodomy, sexual penetration by foreign object, or sexual touching that does not include penetration by the penis into the vagina. However, crimes other than incest may be covered in these situations depending on the facts of the case.
Degree of blood relationship (consanguinity) proscribed by incest law:
Blood relationship between a child and parent (father or mother)
Blood relationship between full siblings (sister and brother)
Blood relationship between grandparent and grandchild
Blood relationship between great-grandparent and great-grandchild
Blood relationship between aunt or uncle to niece or nephew
Half-blood relationship between siblings (step-sister or step-brother)
Half-blood relationship between aunt or uncle to niece or nephew
Note: Same sex relationships are also covered under incest law.
PC 285 Punishment
Prison: PC 285 is classified as a felony. If found guilty of either having sexual intercourse with a related person, or marrying a related person, the defendant may face up to three years in prison (PC285-F).
Probation sentence: A probation sentence is a period of supervision, as opposed to an actual prison sentence. A probation sentence may be available in some incest cases depending on the egregiousness of the case and the defendant's criminal history. Probation sentences carry 'terms of probation,' which must be obeyed in order to remain on probation. These terms of probation include, but are not limited to, the following: stay away from the victim, pay restitution for any economic loss to the victim, stay out of trouble (no felony or misdemeanor crime while on probation, register as a sex offender pursuant to PC 290, and more).
Special Probation Term: The judge or district attorney may create any probation term that is reasonably related to the alleged incest offense. In PC 285 cases, if the defendant is found to have committed his or he alleged crime while he or she was under the influence of drugs or alcohol, then the court, or the district attorney, will require the defendant to abstain from alcohol and/or drugs during the term of probation (PC 1203.02).
PC 1170(h): If the accused is found guilty of incest, and he or she is not granted a probation sentence, then the defendant must serve his or her incarceration in a prison, as opposed to a local county jail. In addition, prison sentences for PC 285 may not be split (served partially in prison and partially out of prison on work release), or suspended (not served unless the defendant violates a condition of probation).
Sex Offender Registration: Any conviction of incest pursuant to PC 285 will require the defendant to register as a sex offender with local law enforcement.
Firearm Prohibition: If found guilty of PC 285 (incest) the defendant will lose his or her right to own or possess a firearm.
Collateral Punishment: In addition to a possible prison sentence, if found guilty of incest, the defendant may suffer harsh probation or parole terms, penalty fines, restraining orders (from brother, sister, son, daughter, etc.), Child Protection Services (CPS) consequences, immigration and professional licensing consequences, and more.
Defenses to PC 285
The most common defense to incest charges, include: demonstrating the defendant did not know of the relationship degree (mistake of fact), insufficient evidence to prove a sexual relationship occurred, statute of limitations, coerced confessions, police investigation misconduct, lack of jurisdiction to prove where the sexual intercourse took place, intoxication, insanity, and more.
If you or a loved one is charged with incest, or penal code 285, contact our sex crimes defense attorneys today. There is no charge for a consultation, and we have successfully defended hundreds of sex crimes. Call today!
Quick Legal Reference
Code: PC 285 (CalCrim No. 1180)
Wobbler: No. PC 285 is not a wobbler. This means that PC 285 is only charged as a felony.
Incarceration: PC 285 prison sentence range: 16 months, 2 or 3 years.
Probation: A probation sentence is allowed in PC 285 cases (assuming other crimes or enhancements that bar a probation sentence are not present). Whether or not a probation sentence is offered by the District Attorney, or granted by the court, depends on several factors, including the defendant's criminal history and the facts of the case.
PC 1170(h)): No. PC 285 is not subject to PC 1170(h) sentencing. This means that any incarceration ordered after a felony conviction, that is not part of a probation sentence, must be served in state prison (as opposed to a county jail), and the prison sentence may not be split or suspended.
Strike: PC 285 is not a strike offense listed in California's Three Strikes law.
Credits: 50% good conduct credits available.
Registration: Sex offender registration is required in PC 285 cases.
Firearms: PC 285 convictions prohibit a defendant from owning or possessing a firearm.
Bail: $25,000 (San Bernardino County)
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