Cal. Codes » Penal Code / PART 1. OF CRIMES AND PUNISHMENTS / TITLE 9. OF CRIMES AGAINST THE PERSON INVOLVING SEXUAL ASSAULT, AND CRIMES AGAINST PUBLIC DECENCY AND GOOD MORALS / CHAPTER 5. Bigamy, Incest, and the Crime Against Nature
California Codes

Cal. Penal Code § 289 (2026)

Bigamy, Incest, and the Crime Against Nature

✓ leginfo export of Sept. 26, 2026 (applied Oct. 1, 2026)
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(a)(1)(A)Any person who commits an act of sexual penetration 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, six, or eight years.

(B)Any person who commits an act of sexual penetration upon a child 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 8, 10, or 12 years.

(C)Any person who commits an act of sexual penetration upon a minor who is 14 years of age or older, 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 6, 8, or 10 years.

(D)This paragraph does not preclude prosecution under Section 269, Section 288.7, or any other provision of law.

(2)Any person who commits an act of sexual penetration when 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, shall be punished by imprisonment in the state prison for three, six, or eight years.

(b)Except as provided in subdivision (c), any person who commits an act of sexual penetration, and the victim is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act or causing the act to be committed, shall be punished by imprisonment in the state prison for three, six, or eight years. Notwithstanding the appointment of a conservator with respect to the victim pursuant to the provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving legal consent.

(c)Any person who commits an act of sexual penetration, and the victim is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act or causing the act to be committed and both the defendant and the victim are at the time confined in a state hospital for the care and treatment of the mentally disordered or in any other public or private facility for the care and treatment of the mentally disordered approved by a county mental health director, shall be punished by imprisonment in the state prison, or in a county jail for a period of not more than one year. Notwithstanding the existence of a conservatorship pursuant to the provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving legal consent.

(d)Any person who commits an act of sexual penetration, and the victim is at the time unconscious of the nature of the act and this is known to the person committing the act or causing the act to be committed, shall be punished by imprisonment in the state prison for three, six, or eight years. As used in this subdivision, “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.

(e)Any person who commits an act of sexual penetration when the victim is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused, shall be punished by imprisonment in the state prison for a period of three, six, or eight years.

(f)Any person who commits an act of sexual penetration when the victim submits under the belief that the person committing the act or causing the act to be committed is someone known to the victim other than the accused, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief, shall be punished by imprisonment in the state prison for a period of three, six, or eight years.

(g)Any person who commits an act of sexual penetration when the act is accomplished against the victim’s will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official, shall be punished by imprisonment in the state prison for a period of three, six, or eight years.

As used in this subdivision, “public official” means a person employed by a governmental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to be a public official.

(h)Except as provided in Section 288, any person who participates in an act of sexual penetration 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 a period of not more than one year.

(i)Except as provided in Section 288, any person over 21 years of age who participates in an act of sexual penetration with another person who is under 16 years of age shall be guilty of a felony.

(j)Any person who participates in an act of sexual penetration with another person who is under 14 years of age and who is more than 10 years younger than he or she shall be punished by imprisonment in the state prison for three, six, or eight years.

(k)As used in this section:

(1)“Sexual penetration” is the act of causing the penetration, however slight, of the genital or anal opening of any person or causing another person to so penetrate the defendant’s or another person’s genital or anal opening for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object.

(2)“Foreign object, substance, instrument, or device” shall include any part of the body, except a sexual organ.

(3)“Unknown object” shall include any foreign object, substance, instrument, or device, or any part of the body, including a penis, when it is not known whether penetration was by a penis or by a foreign object, substance, instrument, or device, or by any other part of the body.

(l)As used in subdivision (a), “threatening to retaliate” means a threat to kidnap or falsely imprison, or inflict extreme pain, serious bodily injury or death.

(m)As used in this section, “victim” includes any person who the defendant causes to penetrate the genital or anal opening of the defendant or another person or whose genital or anal opening is caused to be penetrated by the defendant or another person and who otherwise qualifies as a victim under the requirements of this section.

Notes of Decisions
Cited in 260 cases (97 in the last 5 years), 1980–2026 · leading case: United States v. Espinoza-Morales, 621 F.3d 1141 (9th Cir. 2010).
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United States v. Espinoza-Morales, 621 F.3d 1141 (9th Cir. 2010). · cites it 11× “The unpublished opinion of the Court of Appeal, Fourth District for the State of California recounts the background facts *1153 surrounding the Defendant's 1999 conviction for "anal and genital penetration by foreign object using force (Pen.Code, § 289, subd. (a)(1))" and…”
People v. Harrison, 768 P.2d 1078 (Cal. 1989). · cites it 2× “We granted review in this case to consider (1) whether a criminal defendant may be convicted of multiple statutory violations (Pen. Code, § 289, subd. (a)) [1] where he commits identical sex acts which are briefly interrupted by his use of force and the victim's struggles and,…”
People v. Daveggio & Michaud, 415 P.3d 717 (Cal. 2018). “(d)(1)(A) ; Pen. Code, § 289 ; cf. Story , supra , 45 Cal.”
People v. Baker, 480 P.3d 49 (Cal. 2021). “(Pen. Code, § 289, subd. (a)(1).) In connection with the murder, the jury found true two special circumstance allegations (rape and burglary) and found not true one additional special circumstance allegation (sexual penetration by foreign object).”
Gualberto Chavez-Garcia v. Jefferson Sessions, 871 F.3d 991 (9th Cir. 2017). · cites it 4× “Penal Code § 288a(g),1 and Sexual Penetration of a Victim Incapable of Consent in violation of Cal. Penal Code § 289 (b).2 The convictions were based on a report that Chavez-Garcia had sexual relations with a resident of the Safe Harbor Adult Health Care Center who was “mildly…”
People v. Bothuel, 205 Cal. App. 3d 581 (Cal. Ct. App. 1988). · cites it 4× “First, subdivision (a) specifically provides that acts constituting separate crimes punishable under other sections may also be charged as violations of section 288.”
Herron v. State, 805 P.2d 624 (N.M. 1991). · cites it 2× “at 405 (quoting Cal.Penal Code § 289). The court based this conclusion on the premise that “a violation of Section 289 is complete the instant slight penetration of the proscribed nature occurs.”
People v. Quintana, 89 Cal. App. 4th 1362 (Cal. Ct. App. 2001). · cites it 2× “Joe Quintana was convicted by a court of foreign object penetration of a minor who was under age 14 and more than 10 years younger than he (Pen. Code, § 289, subd. (j)), and was sentenced to the low term of three years in state prison.”
People v. Housley, 6 Cal. App. 4th 947 (Cal. Ct. App. 1992). · cites it 2× “(a)(2)) and five counts of rape by a foreign object (Pen. Code, § 289, subd. (a).) He contends his convictions must be reversed or, at a minimum, his case remanded for resentencing, for the following reasons: (1) the court improperly allowed a psychologist to offer expert…”
People v. Scott, 203 Cal. App. 4th 1303 (Cal. Ct. App. 2012). “, unlawful penetration (Pen. Code, § 289, subd. (a)(1)) and oral copulation (id.”
People v. Hollie, 180 Cal. App. 4th 1262 (Cal. Ct. App. 2010). “(a)(2)), and sexual penetration with a foreign object (Pen. Code, § 289, subd. (a)(1)), and sentenced to a term of 10 years in state prison.”
People v. Callahan, 74 Cal. App. 4th 356 (Cal. Ct. App. 1999). · cites it 2× “(a)), and fingered and mouthed her vagina (Pen. Code, §§ 289, subd. (a), 288a, subd.”
Show all 260 citing cases →
Cal. Penal Code § 289(A): 2 cases
Lawtis Donald RHODEN v. James ROWLAND, 172 F.3d 633 (9th Cir. 1999).
Lawtis Donald RHODEN v. James ROWLAND, 154 F.3d 1034 (9th Cir. 1998).
Cal. Penal Code § 289(a): 3 cases
Herron v. State, 805 P.2d 624 (N.M. 1991). “at 405 (quoting Cal.Penal Code § 289). The court based this conclusion on the premise that “a violation of Section 289 is complete the instant slight penetration of the proscribed nature occurs.”
Lawtis Donald Rhoden v. James Rowland, 10 F.3d 1457 (9th Cir. 1993).
People v. Kusumoto, 169 Cal. App. 3d 487 (Cal. Ct. App. 1985).
Cal. Penal Code § 289(a)(1): 3 cases
United States v. Espinoza-Morales, 621 F.3d 1141 (9th Cir. 2010). “The unpublished opinion of the Court of Appeal, Fourth District for the State of California recounts the background facts *1153 surrounding the Defendant's 1999 conviction for "anal and genital penetration by foreign object using force (Pen.Code, § 289, subd. (a)(1))" and…”
United States v. Irvin Sandoval-Orellana, 714 F.3d 1174 (9th Cir. 2013).
People v. Ocampo, No. E056700 (Cal. Ct. App. Dec. 19, 2013).
Cal. Penal Code § 289(b): 1 case
Drew v. Scribner, 252 F. App'x 815 (9th Cir. 2007).
Cal. Penal Code § 289(d): 2 cases
Rogers v. Giurbino, 619 F. Supp. 2d 1006 (S.D. Cal. 2007).
Robles v. Holder, 335 F. App'x 366 (5th Cir. 2009).
Cal. Penal Code § 289(e): 1 case
Pham v. Becerra, 717 F. Supp. 3d 877 (N.D. Cal. 2024).
Cal. Penal Code § 289(h): 3 cases
Luis A Rios v. Covello, No. 2:20-cv-11678 (C.D. Cal. Jan. 20, 2022).
People v. Renfroe, No. G063292 (Cal. Ct. App. July 15, 2024).
People v. Rodriguezkepley, No. E082102 (Cal. Ct. App. May 9, 2025).
Cal. Penal Code § 289(j): 3 cases
United States v. Guadalupe Mendoza-Iribe, 198 F.3d 742 (9th Cir. 1999).
Toledo-Castillo v. Ashcroft, 11 F. App'x 877 (9th Cir. 2001).
United States v. Ruiz-Tello, 40 F. App'x 604 (9th Cir. 2002).
Cal. Penal Code § 289(k)(1): 1 case
United States v. Guadalupe Mendoza-Iribe, 198 F.3d 742 (9th Cir. 1999).
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