The law on the crime of sex with an inmate or confined adult, also called sexual activity with a confined adult, is found at California penal code section 289.6 PC.
PC 289.6 Law
According to California penal code 289.6(a)(1), An employee… of a public… or private health facility, who engages is sexual activity with a consenting adult, who is confined in a health facility is guilty of sexual activity with an inmate or confined adult (PC 289.6(a)(1) Abbrev.).
An employee or officer of a public or private detention facility (jail, prison, work camp, etc.), who engages in sexual activity with a consenting adult, who is confined in a detention facility, is guilty of sexual activity with an inmate (PC 289.6(a)(2) Abbrev.).
An employee with… the Department of Corrections and Rehabilitation or a facility under contract or authority with a department of Corrections and Rehabilitation, who, during the course of his or her employment directly provides treatment, care, control, or supervision of inmates, wards, or parolees, and who engages in sexual activity with a consenting adult who is an inmate, ward, or parolee, is sexual activity with an inmate (PC 289.6(a)(3) Abbrev.).
Detention Facility: A detention facility means a prison, jail, camp, or other correctional facility used for the confinement of adult or minor inmates and prisoners. This includes just about all areas of the detention facility, such as interview rooms, restrooms, and even transport vehicles used to transport inmates and prisoners to and from jail, prison, detention facility, court holding cells, work camp, etc. (PC 289.6(c) Abbrev.).
Sexual Activity: Sexual activity means sexual intercourse, sodomy, oral copulation, sexual penetration with object, the rubbing or touching or breasts or sexual organs of another, or of oneself in the presence of and with knowledge of another, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of oneself or another (PC 289.6(d) Abbrev.).
Example: David is a prison inmate in a California state prison. David engages in consensual oral copulation with a custodial officer employed at the prison. Result: The custodial officer may be charged with sexual activity of an inmate (oral copulation) pursuant to penal code 289.6. It does not matter if the oral copulation between David and the custodial officer is consensual. David, as the prison inmate, will not be charged with PC 289.6.
Example II: Mary is out of custody and on parole after her prison incarceration for the crime of robbery (PC 211). During one of her mandatory visits to her parole officer’s office, Mary and her parole officer engage in consensual sexual intercourse in the parole officer’s office. Result: Mary’s parole officer may be charged with sexual activity with a confined adult under PC 289.6. This is true even though Mary is not technically confined in a detention center or at the parole officer’s office. Mary would not be charged with the PC 289.6 offense.
Example III: Cindy is detained in a county jail while she awaits her next court hearing. On the day of her next court hearing, she is transported from the jail to criminal courthouse by a private contactor of the county jail. During the prisoner transport, the transporting deputy and Cindy engage in consensual oral copulation. Result: The transporting deputy may be charged with sexual activity of a confined adult (inmate) even though the “facility” where the sexual activity occurs in a private contractor’s vehicle and away from the jail itself. Cindy would not be charged with PC 289.6.
PC 289.6 Punishment
The crime of sexual activity with an inmate or confined adult is usually classified as a "wobbler" crime. A wobbler crime is a criminal charge that may be filed either as a felony, or alternatively as a misdemeanor. There is an exception for the crime of second offense sexual activity with an inmate charged under PC 289.6(i), which is only charged as a felony. For more information, see What Is a Wobbler Crime?
Felony Prison Sentence: When PC 289.6 is charged as a felony, the defendant may face up to 16 months, 2 years, or 3 years in a California state prison. A probation sentence, either with or without some local county jail commitment, is allowed in felony PC 289.6 cases, but a probation sentence is not guaranteed (See below).
Note: Whether the defendant receives a probation sentence, a 16-month sentence, a 2 year sentence, or a 3 years sentence, depends largely on the facts of the case, the sophistication level of the alleged crime, the defendant’s criminal history, the terms of any plea agreement, and more.
Misdemeanor Jail Sentence: When PC 289.6 is charged as misdemeanor, the defendant may face up to a one-year jail term. A probation sentence, with or without some possible jail commitment is also allowed in misdemeanor PC 289.6 cases.
Probation Sentence: As stated, a probation sentence is allowed in penal code 289.6(a) cases, including PC 289.6(a)(1), 289.6(a)(2), and 289.6(a)(3) cases. A probation sentence is a period of formal or informal supervision, as opposed to actual incarceration.
Note: Sometimes a probation sentence can include an actual jail sentence; however, when the defendant is granted a probation sentence after a PC 289.6 conviction, as opposed to a prison sentence, the jail commitment is much shorter than it would have otherwise been if the defendant was not granted a probation sentence. Additionally, most incarceration terms that accompany probation sentences may be served alternatively on work release or house arrest, as opposed to being served by the defendant in an actual jail or detention facility.
No Split Prison Sentence: If the defendant is found guilty of a felony violation of sexual activity with an inmate (or confined adult), and the defendant is not granted a probation sentence, then the defendant must serve his or her time in a California state prison, and no part of that prison sentence may be served on work release or house arrest.
Sex Offender Registration: Sex offender registration pursuant to PC 290 is not generally required after a penal 289.6 conviction. This is because the law recognizes that the sexual activity announced under PC 289.6 is between two consenting adults, even though the consent of the victim may be considered under duress. However, if the criminal court judge finds that the defendant acted with a uncontrollable desire to sexually satisfy himself or herself, then the judge is allowed to order sex offender registration requirements pursuant to PC 290.006.
Lost Employment: Anyone who is convicted of a felony violation of this section who is employed by a department, board, or authority within the Department of Corrections and Rehabilitation shall be terminated… and… shall not be eligible to be hired or reinstated by a department, board, or authority within the Department of Corrections and Rehabilitation (PC 289.6(j) Abbrev.).
Firearm Restriction: A felony conviction of PC 289.6(a) will result in a lifetime ban on the defendant from owning or possessing firearms.
Additional Penalties: Additional direct and indirect penalties for a conviction of sexual activity with a confined adult include loss of immigration status for non-US citizens (i.e., deportation, denial of reentry into the United States, etc.). loss of professional License, loss of employment, loss of military service, restitution to victim, criminal protective orders against the defendant, court fines (up to $10,000), civil lawsuits, and more.
Note: If the defendant did not engage in consensual sexual activity with an inmate or confined adult, then PC 289.6 charges are not proper. Rather, the defendant will be charged according to the sex crimes listed under non-consensual sexual activity (i.e., rape, sexual battery, oral copulation by force or fear, sexual penetration by force or fear, sodomy by force or fear, indecent exposure, sexual assault, etc.).
PC 289.6 Defense
Every sex with an inmate case is different; therefore, the defense of every sex with an inmate case is different. With this mind, some defenses lend themselves to certain types of criminal charges more than others. With PC 289.6 charges, these common defenses include insufficient evidence, alibi, false accusations, coerced confession, and more.
Consent Not a Defense: As stated, consent to sexual activity is not a defense in PC 289.6 allegations. This includes alleged consent between parole agents and parolees.
Illegal Search & Seizure: Illegal search and seizure is a common defense to most crimes; however, with PC 289.6 crimes, most of the time the consent to search and seize and evidence is explicitly granted by the defendant by virtue of his or her presence on the jail or prison campus (or detention center, court holding cell, jail transport vehicle, etc.).
Conjugal Visits: PC 289.6 does not apply to overnight conjugal visit that takes place pursuant to a court order or with the written approval of an authorized representative of the public entity that operates or contracts for the operation of the detention facility where the conjugal visit takes place (PC 289.6 Abbrev.)
Physical Exams: For obvious security and medical purposes involving prisoners, and by legal exception, PC 289.6 does not apply to physical contact or penetration made pursuant to a lawful search, or bona fide medical examinations or treatments, including clinical treatments.
For more information on the crime of sexual activity with a confined adult or inmate (sex with an inmate), or PC 289.6(a), contact our criminal defense team today for a free consultation. Our criminal defense attorneys have successfully defended hundreds of felony and misdemeanor criminal charges in the Inland Empire, including the cities and courts of Redlands, Riverside, Rancho Cucamonga, Fontana, Rialto, Ontario, Highland, Victorville, Yucaipa, Chino, and more. We offer free consultations, and we can even visit some local jails for a small fee consultation (West Valley Detention Center, Glen Helen Detention Center). Call today!