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Sodomy Crimes Law & Defense
The laws on the crime of unlawful sodomy can be found at California penal code section 286. There are many different sodomy crimes in California. For example, sodomy with a person under the age of eighteen is charged as PC 286(b)(1), whereas sodomy by force or fear against an adult is charged as PC 286(c)(2)(A). This article is intended to cover a general overview of sodomy crimes, defenses, and punishments. There is a list of the different sodomy charges and corresponding punishments at the end of this article.
Sodomy is defined as sexual penetration between a man's penis and another person’s anus. Any sexual penetration, however slight, is sufficient to qualify as sodomy [PC 286(a)].
Note: Sodomy is not illegal in California. Only sodomy without consent is a crime. Minors, or persons under the age of eighteen, do not have the legal capacity to consent.
To be found guilty of the crime of sodomy the prosecution must prove there was penetration with a victim. Sexual penetration can be established by testimony of the victim or circumstantial evidence. For example, sperm in the victim's rectum or additional signs of trauma or injury can be circumstantial evidence of penetration. Also, the prosecution does not have to prove that there was skin-on-skin contact to prove sodomy. Therefore, if the victim is wearing a condom during anal penetration it will still be considered sexual penetration.
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. The prosecution is not required to prove that the defendant intended to commit a precise harm or injury while committing sodomy.
Almost all sodomy charges are filed as felonies. The most common sodomy charges and corresponding maximum sentences are as follows:
PC 286(b)(1) (Sodomy against a minor) Filed as a misdemeanor or as a felony. Misdemeanor charges carry up to a one year jail sentence. Felony charges carry up to a three year prison sentence.
PC 286(b)(2) (Sodomy against a minor under 16) Felony charge that carries up to a three year prison sentence.
PC 286(c)(1) (Sodomy against a minor under 14) Felony charge that carries up to a eight year prison sentence.
PC 286(c)(2)(A) (Sodomy by force or fear) Felony charge that carries up to a eight year prison sentence.
PC 286(c)(2)(B) (Sodomy by force or fear against a minor under 14) Felony charge that carries up to thirteen years in prison.
PC 286(c)(2)(C) (Sodomy by force or fear against a minor over 13) Felony charge that carries up to eleven years in prison.
PC 286(f) (Sodomy of an unconscious victim) Felony charge that carries up to eight years in prison.
Note: Probation is not available in unlawful sodomy cases. Also, incarceration for most crimes related to sodomy are served in state prison (as opposed to a local county jail) a dno part of that prison sentence may be split or suspended.
Sex Offender Registration: If found guilty of the crime of sodomy the defendant will be required to register as a sex offender pursuant to PC 290. Sex offender registration requires the defendant, among others things, to register with local law enforcement as a sex offender every year. Publication on California's sex offender's website is mandatory for PC 286 crimes.
Three Strikes Sentencing: Most, but not all, PC 286 crimes, are serious and violent offenses as those terms are defined under California law; therefore, almost all sodomy crimes are considered strike offenses in California.
Immigration Consequences: Sodomy crimes are considered to be crimes of moral turpitude. Crimes of moral turpitude are crimes that are considered to be morally wrong. Non-U.S. citizens may deported, denied citizenship, or denied reentry into the United States upon any conviction for a crime of moral turpitude.
Collateral Punishment: As with other sex crimes, PC 286 convictions may carry additional criminal and civil punishments, including: fines, court security fees, restitution, victim restitution, restraining orders, civil lawsuits, loss of rights to own firearms, loss of a professional license, and more.
Defenses to PC 286
Consent: Consent means both individuals decided to partake in an act of sodomy of their own free will. Consent cannot be gained by fraud; therefore, if the defendant lied to the victim in some way that made the victim want to consent, the consent is not 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 a minor at the time of alleged sodomy.
Good Faith Belief: A reasonable good faith belief by the defendant that the minor was an adult at the time of the act of sodomy could be a defense to some PC 286 crimes.
Other common defenses to PC 286 crimes include: Insufficient evidence, mistake of fact, coerced confessions, extreme intoxication, insanity, statute of limitations, illegal search and seizure, and more.
To learn more about the crime of unlawful sodomy, including PC 286(b), 286(c), and 286(d), contact our successful and experienced sex crimes criminal defense attorneys today for a free consultation. Call today!
Quick Reference Sheet
Crime: Sodomy by Force or Fear of Injury
Code: PC 286(c)(2)(A) (CalCrim No. 1030 et seq.)
Wobbler: No. PC 286(c)(2)(A) is not a wobbler. This means that PC 287(c)(2)(A) is always charged as a felony.
Incarceration: PC 286(c)(2)(A) prison sentence range: 3, 6, or 8 years.
Probation: Probation is not available in PC 286(c)(2)(A) cases.
PC 1170(h)): No. PC 286(c)(2)(A) is not subject to PC 1170(h) sentencing. This means that any incarceration ordered after a 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 286(c)(2)(A) is a strike offense per California's Three Strikes law because this crime is considered a: Serious offense (PC 1192.7), and a Violent offense (PC 667.5(c). Strike offenses are subject to reduced good time credits in jail or prison and other penalty enhancements upon subsequent criminal convictions.
Credits: 15% good conduct credits available.
CIMT: PC 286(c)(2)(A) is a crime involving moral turpitude, which means that an arrest or conviction could lead to the following:
Professional Licensing problems
Impeachment on credibility
Firearms: PC 286(c)(2)(A) convictions prohibit a defendant from owning or possessing a firearm.
Registration: If convicted of PC 286(c)(2)(A), the defendant is required to register as a sex offender with law enforcement.
Bail: $100,000 (San Bernardino County)
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