281. (a) Every person having a husband or wife living, who marries
any other person, except in the cases specified in Section 282, is
guilty of bigamy.
(b) Upon a trial for bigamy, it is not necessary to prove either
of the marriages by the register, certificate, or other record
evidence thereof, but the marriages may be proved by evidence which
is admissible to prove a marriage in other cases; and when the second
marriage took place out of this state, proof of that fact,
accompanied with proof of cohabitation thereafter in this state, is
sufficient to sustain the charge.
282. Section 281 does not extend to any of the following:
(a) To any person by reason of any former marriage whose husband
or wife by such marriage has been absent for five successive years
without being known to such person within that time to be living.
(b) To any person by reason of any former marriage which has been
pronounced void, annulled, or dissolved by the judgment of a
competent court.
283. Bigamy is punishable by a fine not exceeding ten thousand
dollars ($10,000) or by imprisonment in a county jail not exceeding
one year or in the state prison.
284. Every person who knowingly and willfully marries the husband
or wife of another, in any case in which such husband or wife would
be punishable under the provisions of this chapter, is punishable by
fine not less than five thousand dollars ($5,000), or by imprisonment
in the state prison.
285. Persons being within the degrees of consanguinity within which
marriages are declared by law to be incestuous and void, who
intermarry with each other, or who being 14 years of age or older,
commit fornication or adultery with each other, are punishable by
imprisonment in the state prison.
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.
(b) (1) Except as provided in Section 288, 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.
(2) Except as provided in Section 288, any person over the age of
21 years who participates in an act of sodomy with another person who
is under 16 years of age shall be guilty of a felony.
(c) (1) 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, six, or eight years.
(2) (A) 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, six, or eight years.
(B) 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.
(C) Any person who commits an act of sodomy with another person
who is a minor 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 7, 9, or 11 years.
(D) This paragraph does not preclude prosecution under Section
269, Section 288.7, or any other provision of law.
(3) Any person who commits an act of sodomy 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,
shall be punished by imprisonment in the state prison for three, six,
or eight years.
(d) (1) Any person who, while voluntarily acting in concert with
another person, either personally or aiding and abetting that other
person, commits an act of sodomy when the act is accomplished against
the victim's will by means of force 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, shall be punished by imprisonment in the state prison for
five, seven, or nine years.
(2) Any person who, while voluntarily acting in concert with
another person, either personally or aiding and abetting that other
person, commits an act of sodomy upon a victim who is under 14 years
of age, when the act is accomplished against the victim's will by
means of force or fear of immediate and unlawful bodily injury on the
victim or another person, shall be punished by imprisonment in the
state prison for 10, 12, or 14 years.
(3) Any person who, while voluntarily acting in concert with
another person, either personally or aiding and abetting that other
person, commits an act of sodomy upon a victim who is a minor 14
years of age or older, when the act is accomplished against the
victim's will by means of force or fear of immediate and unlawful
bodily injury on the victim or another person, shall be punished by
imprisonment in the state prison for 7, 9, or 11 years.
(4) This subdivision does not preclude prosecution under Section
269, Section 288.7, or any other provision of law.
(e) Any person who participates in an act of sodomy with any
person of any age while confined in any state prison, as defined in
Section 4504, or in any local detention facility, as defined in
Section 6031.4, shall be punished by imprisonment in the state
prison, or in a county jail for not more than one year.
(f) 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, 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.
(g) Except as provided in subdivision (h), a person who commits an
act of sodomy, 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, shall be punished by imprisonment in the
state prison for three, six, or eight years. Notwithstanding the
existence of a conservatorship pursuant to 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 consent.
(h) Any person who commits an act of sodomy, 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, 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 not more than one year. Notwithstanding the existence of a
conservatorship pursuant to 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.
(i) Any person who commits an act of sodomy, where the victim is
prevented from resisting by an 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 three, six, or eight years.
(j) Any person who commits an act of sodomy, where the victim
submits under the belief that the person committing the act is the
victim's spouse, 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 three, six, or eight years.
(k) Any person who commits an act of sodomy, where 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 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.
(l) As used in subdivisions (c) and (d), "threatening to retaliate"
means a threat to kidnap or falsely imprison, or inflict extreme
pain, serious bodily injury, or death.
(m) In addition to any punishment imposed under this section, the
judge may assess a fine not to exceed seventy dollars ($70) against
any person who violates this section, with the proceeds of this fine
to be used in accordance with Section 1463.23. The court, however,
shall take into consideration the defendant's ability to pay, and no
defendant shall be denied probation because of his or her inability
to pay the fine permitted under this subdivision.
286.5. Any person who sexually assaults any animal protected by
Section 597f for the purpose of arousing or gratifying the sexual
desire of the person is guilty of a misdemeanor.
288. (a) Except as provided in subdivision (i), any person who
willfully and lewdly commits any lewd or lascivious act, including
any of the acts constituting other crimes provided for in Part 1,
upon or with the body, or any part or member thereof, of a child who
is under the age of 14 years, with the intent of arousing, appealing
to, or gratifying the lust, passions, or sexual desires of that
person or the child, is guilty of a felony and shall be punished by
imprisonment in the state prison for three, six, or eight years.
(b) (1) Any person who commits an act described in subdivision (a)
by use of force, violence, duress, menace, or fear of immediate and
unlawful bodily injury on the victim or another person, is guilty of
a felony and shall be punished by imprisonment in the state prison
for 5, 8, or 10 years.
(2) Any person who is a caretaker and commits an act described in
subdivision (a) upon a dependent person by use of force, violence,
duress, menace, or fear of immediate and unlawful bodily injury on
the victim or another person, with the intent described in
subdivision (a), is guilty of a felony and shall be punished by
imprisonment in the state prison for 5, 8, or 10 years.
(c) (1) Any person who commits an act described in subdivision (a)
with the intent described in that subdivision, and the victim is a
child of 14 or 15 years, and that person is at least 10 years older
than the child, is guilty of a public offense and shall be punished
by imprisonment in the state prison for one, two, or three years, or
by imprisonment in a county jail for not more than one year. In
determining whether the person is at least 10 years older than the
child, the difference in age shall be measured from the birth date of
the person to the birth date of the child.
(2) Any person who is a caretaker and commits an act described in
subdivision (a) upon a dependent person, with the intent described in
subdivision (a), is guilty of a public offense and shall be punished
by imprisonment in the state prison for one, two, or three years, or
by imprisonment in a county jail for not more than one year.
(d) In any arrest or prosecution under this section or Section
288.5, the peace officer, district attorney, and the court shall
consider the needs of the child victim or dependent person and shall
do whatever is necessary, within existing budgetary resources, and
constitutionally permissible to prevent psychological harm to the
child victim or to prevent psychological harm to the dependent person
victim resulting from participation in the court process.
(e) Upon the conviction of any person for a violation of
subdivision (a) or (b), the court may, in addition to any other
penalty or fine imposed, order the defendant to pay an additional
fine not to exceed ten thousand dollars ($10,000). In setting the
amount of the fine, the court shall consider any relevant factors,
including, but not limited to, the seriousness and gravity of the
offense, the circumstances of its commission, whether the defendant
derived any economic gain as a result of the crime, and the extent to
which the victim suffered economic losses as a result of the crime.
Every fine imposed and collected under this section shall be
deposited in the Victim-Witness Assistance Fund to be available for
appropriation to fund child sexual exploitation and child sexual
abuse victim counseling centers and prevention programs pursuant to
Section 13837.
If the court orders a fine imposed pursuant to this subdivision,
the actual administrative cost of collecting that fine, not to exceed
2 percent of the total amount paid, may be paid into the general
fund of the county treasury for the use and benefit of the county.
(f) For purposes of paragraph (2) of subdivision (b) and paragraph
(2) of subdivision (c), the following definitions apply:
(1) "Caretaker" means an owner, operator, administrator, employee,
independent contractor, agent, or volunteer of any of the following
public or private facilities when the facilities provide care for
elder or dependent persons:
(A) Twenty-four hour health facilities, as defined in Sections
1250, 1250.2, and 1250.3 of the Health and Safety Code.
(B) Clinics.
(C) Home health agencies.
(D) Adult day health care centers.
(E) Secondary schools that serve dependent persons and
postsecondary educational institutions that serve dependent persons
or elders.
(F) Sheltered workshops.
(G) Camps.
(H) Community care facilities, as defined by Section 1402 of the
Health and Safety Code, and residential care facilities for the
elderly, as defined in Section 1569.2 of the Health and Safety Code.
(I) Respite care facilities.
(J) Foster homes.
(K) Regional centers for persons with developmental disabilities.
(L) A home health agency licensed in accordance with Chapter 8
(commencing with Section 1725) of Division 2 of the Health and Safety
Code.
(M) An agency that supplies in-home supportive services.
(N) Board and care facilities.
(O) Any other protective or public assistance agency that provides
health services or social services to elder or dependent persons,
including, but not limited to, in-home supportive services, as
defined in Section 14005.14 of the Welfare and Institutions Code.
(P) Private residences.
(2) "Board and care facilities" means licensed or unlicensed
facilities that provide assistance with one or more of the following
activities:
(A) Bathing.
(B) Dressing.
(C) Grooming.
(D) Medication storage.
(E) Medical dispensation.
(F) Money management.
(3) "Dependent person" means any person who has a physical or
mental impairment that substantially restricts his or her ability to
carry out normal activities or to protect his or her rights,
including, but not limited to, persons who have physical or
developmental disabilities or whose physical or mental abilities have
significantly diminished because of age. "Dependent person" includes
any person who is admitted as an inpatient to a 24-hour health
facility, as defined in Sections 1250, 1250.2, and 1250.3 of the
Health and Safety Code.
(g) Paragraph (2) of subdivision (b) and paragraph (2) of
subdivision (c) apply to the owners, operators, administrators,
employees, independent contractors, agents, or volunteers working at
these public or private facilities and only to the extent that the
individuals personally commit, conspire, aid, abet, or facilitate any
act prohibited by paragraph (2) of subdivision (b) and paragraph (2)
of subdivision (c).
(h) Paragraph (2) of subdivision (b) and paragraph (2) of
subdivision (c) do not apply to a caretaker who is a spouse of, or
who is in an equivalent domestic relationship with, the dependent
person under care.
(i) (1) Any person convicted of a violation of subdivision (a)
shall be imprisoned in the state prison for life with the possibility
of parole if the defendant personally inflicted bodily harm upon the
victim.
(2) The penalty provided in this subdivision shall only apply if
the fact that the defendant personally inflicted bodily harm upon the
victim is pled and proved.
(3) As used in this subdivision, "bodily harm" means any
substantial physical injury resulting from the use of force that is
more than the force necessary to commit the offense.
288.1. Any person convicted of committing any lewd or lascivious
act including any of the acts constituting other crimes provided for
in Part 1 of this code upon or with the body, or any part or member
thereof, of a child under the age of 14 years shall not have his or
her sentence suspended until the court obtains a report from a
reputable psychiatrist, from a reputable psychologist who meets the
standards set forth in Section 1027, as to the mental condition of
that person.
288.2. (a) Every person who, with knowledge that a person is a
minor, or who fails to exercise reasonable care in ascertaining the
true age of a minor, knowingly distributes, sends, causes to be sent,
exhibits, or offers to distribute or exhibit by any means,
including, but not limited to, live or recorded telephone messages,
any harmful matter, as defined in Section 313, to a minor with the
intent of arousing, appealing to, or gratifying the lust or passions
or sexual desires of that person or of a minor, and with the intent
or for the purpose of seducing a minor, is guilty of a public offense
and shall be punished by imprisonment in the state prison or in a
county jail.
A person convicted of a second and any subsequent conviction for a
violation of this section is guilty of a felony.
(b) Every person who, with knowledge that a person is a minor,
knowingly distributes, sends, causes to be sent, exhibits, or offers
to distribute or exhibit by electronic mail, the Internet, as defined
in Section 17538 of the Business and Professions Code, or a
commercial online service, any harmful matter, as defined in Section
313, to a minor with the intent of arousing, appealing to, or
gratifying the lust or passions or sexual desires of that person or
of a minor, and with the intent, or for the purpose of seducing a
minor, is guilty of a public offense and shall be punished by
imprisonment in the state prison or in a county jail.
A person convicted of a second and any subsequent conviction for a
violation of this section is guilty of a felony.
(c) It shall be a defense to any prosecution under this section
that a parent or guardian committed the act charged in aid of
legitimate sex education.
(d) It shall be a defense in any prosecution under this section
that the act charged was committed in aid of legitimate scientific or
educational purposes.
(e) It does not constitute a violation of this section for a
telephone corporation, as defined in Section 234 of the Public
Utilities Code, a cable television company franchised pursuant to
Section 53066 of the Government Code, or any of its affiliates, an
Internet service provider, or commercial online service provider, to
carry, broadcast, or transmit messages described in this section or
perform related activities in providing telephone, cable television,
Internet, or commercial online services.
288.3. (a) Every person who contacts or communicates with a minor,
or attempts to contact or communicate with a minor, who knows or
reasonably should know that the person is a minor, with intent to
commit an offense specified in Section 207, 209, 261, 264.1, 273a,
286, 288, 288a, 288.2, 289, 311.1, 311.2, 311.4 or 311.11 involving
the minor shall be punished by imprisonment in the state prison for
the term prescribed for an attempt to commit the intended offense.
(b) As used in this section, "contacts or communicates with" shall
include direct and indirect contact or communication that may be
achieved personally or by use of an agent or agency, any print
medium, any postal service, a common carrier or communication common
carrier, any electronic communications system, or any
telecommunications, wire, computer, or radio communications device or
system.
(c) A person convicted of a violation of subdivision (a) who has
previously been convicted of a violation of subdivision (a) shall be
punished by an additional and consecutive term of imprisonment in the
state prison for five years.
288.4. (a) (1) Every person who, motivated by an unnatural or
abnormal sexual interest in children, arranges a meeting with a minor
or a person he or she believes to be a minor for the purpose of
exposing his or her genitals or pubic or rectal area, having the
child expose his or her genitals or pubic or rectal area, or engaging
in lewd or lascivious behavior, shall be punished by a fine not
exceeding five thousand dollars ($5,000), by imprisonment in a county
jail not exceeding one year, or by both the fine and imprisonment.
(2) Every person who violates this subdivision after a prior
conviction for an offense listed in subdivision (c) of Section 290
shall be punished by imprisonment in the state prison.
(b) Every person described in paragraph (1) of subdivision (a) who
goes to the arranged meeting place at or about the arranged time,
shall be punished by imprisonment in the state prison for two, three,
or four years.
(c) Nothing in this section shall preclude or prohibit prosecution
under any other provision of law.
288.5. (a) Any person who either resides in the same home with the
minor child or has recurring access to the child, who over a period
of time, not less than three months in duration, engages in three or
more acts of substantial sexual conduct with a child under the age of
14 years at the time of the commission of the offense, as defined in
subdivision (b) of Section 1203.066, or three or more acts of lewd
or lascivious conduct, as defined in Section 288, with a child under
the age of 14 years at the time of the commission of the offense is
guilty of the offense of continuous sexual abuse of a child and shall
be punished by imprisonment in the state prison for a term of 6, 12,
or 16 years.
(b) To convict under this section the trier of fact, if a jury,
need unanimously agree only that the requisite number of acts
occurred not on which acts constitute the requisite number.
(c) No other act of substantial sexual conduct, as defined in
subdivision (b) of Section 1203.066, with a child under 14 years of
age at the time of the commission of the offenses, or lewd and
lascivious acts, as defined in Section 288, involving the same victim
may be charged in the same proceeding with a charge under this
section unless the other charged offense occurred outside the time
period charged under this section or the other offense is charged in
the alternative. A defendant may be charged with only one count under
this section unless more than one victim is involved in which case a
separate count may be charged for each victim.
288.7. (a) Any person 18 years of age or older who engages in
sexual intercourse or sodomy with a child who is 10 years of age or
younger is guilty of a felony and shall be punished by imprisonment
in the state prison for a term of 25 years to life.
(b) Any person 18 years of age or older who engages in oral
copulation or sexual penetration, as defined in Section 289, with a
child who is 10 years of age or younger is guilty of a felony and
shall be punished by imprisonment in the state prison for a term of
15 years to life.
288a. (a) Oral copulation is the act of copulating the mouth of one
person with the sexual organ or anus of another person.
(b) (1) Except as provided in Section 288, any person who
participates in an act of oral copulation 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.
(2) Except as provided in Section 288, any person over the age of
21 years who participates in an act of oral copulation with another
person who is under 16 years of age is guilty of a felony.
(c) (1) Any person who participates in an act of oral copulation
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, six, or eight years.
(2) (A) Any person who commits an act of oral copulation 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 oral copulation upon a 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 8,
10, or 12 years.
(C) Any person who commits an act of oral copulation 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.
(3) Any person who commits an act of oral copulation 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, shall be punished by imprisonment in the state prison for
three, six, or eight years.
(d) (1) Any person who, while voluntarily acting in concert with
another person, either personally or by aiding and abetting that
other person, commits an act of oral copulation (1) when the act is
accomplished against the victim's will by means of force or fear of
immediate and unlawful bodily injury on the victim or another person,
or (2) 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, or (3) where 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, shall be
punished by imprisonment in the state prison for five, seven, or
nine 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 described under
paragraph (3), that a mental disorder or developmental or physical
disability rendered the alleged victim incapable of giving legal
consent.
(2) Any person who, while voluntarily acting in concert with
another person, either personally or aiding and abetting that other
person, commits an act of oral copulation upon a victim who is under
14 years of age, when the act is accomplished against the victim's
will by means of force or fear of immediate and unlawful bodily
injury on the victim or another person, shall be punished by
imprisonment in the state prison for 10, 12, or 14 years.
(3) Any person who, while voluntarily acting in concert with
another person, either personally or aiding and abetting that other
person, commits an act of oral copulation upon a victim who is a
minor 14 years of age or older, when the act is accomplished against
the victim's will by means of force 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.
(4) This paragraph does not preclude prosecution under Section
269, Section 288.7, or any other provision of law.
(e) Any person who participates in an act of oral copulation while
confined in any state prison, as defined in Section 4504 or in any
local detention facility as defined in Section 6031.4, shall be
punished by imprisonment in the state prison, or in a county jail for
a period of not more than one year.
(f) Any person who commits an act of oral copulation, 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 a period of 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 oral copulation served a
professional purpose when it served no professional purpose.
(g) Except as provided in subdivision (h), any person who commits
an act of oral copulation, 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, shall be punished by
imprisonment in the state prison, for three, six, or eight years.
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 consent.
(h) Any person who commits an act of oral copulation, 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, 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.
(i) Any person who commits an act of oral copulation, where 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.
(j) Any person who commits an act of oral copulation, where the
victim submits under the belief that the person committing the act is
the victim's spouse, 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.
(k) Any person who commits an act of oral copulation, where 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.
(l) As used in subdivisions (c) and (d), "threatening to retaliate"
means a threat to kidnap or falsely imprison, or to inflict extreme
pain, serious bodily injury, or death.
(m) In addition to any punishment imposed under this section, the
judge may assess a fine not to exceed seventy dollars ($70) against
any person who violates this section, with the proceeds of this fine
to be used in accordance with Section 1463.23. The court shall,
however, take into consideration the defendant's ability to pay, and
no defendant shall be denied probation because of his or her
inability to pay the fine permitted under this subdivision.
289. (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 the victim's spouse, 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 the county jail for a period of not more than one year.
(i) Except as provided in Section 288, any person over the age of
21 years 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.
289.5. (a) Every person who flees to this state with the intent to
avoid prosecution for an offense which, if committed or attempted in
this state, would have been punishable as one or more of the offenses
described in subdivision (c) of Section 290, and who has been
charged with that offense under the laws of the jurisdiction from
which the person fled, is guilty of a misdemeanor.
(b) Every person who flees to this state with the intent to avoid
custody or confinement imposed for conviction of an offense under the
laws of the jurisdiction from which the person fled, which offense,
if committed or attempted in this state, would have been punishable
as one or more of the offenses described in subdivision (c) of
Section 290, is guilty of a misdemeanor.
(c) No person shall be charged and prosecuted for an offense under
this section unless the prosecutor has requested the other
jurisdiction to extradite the person and the other jurisdiction has
refused to do so.
(d) Any person who is convicted of any felony sex offense
described in subdivision (c) of Section 290, that is committed after
fleeing to this state under the circumstances described in
subdivision (a) or (b) of this section, shall, in addition and
consecutive to the punishment for that conviction, receive an
additional term of two years' imprisonment.
289.6. (a) (1) An employee or officer of a public entity health
facility, or an employee, officer, or agent of a private person or
entity that provides a health facility or staff for a health facility
under contract with a public entity, who engages in sexual activity
with a consenting adult who is confined in a health facility is
guilty of a public offense. As used in this paragraph, "health
facility" means a health facility as defined in subdivisions (b),
(e), (g), (h), and (j), and subparagraph (C) of paragraph (2) of
subdivision (i) of Section 1250 of the Health and Safety Code, in
which the victim has been confined involuntarily.
(2) An employee or officer of a public entity detention facility,
or an employee, officer, or agent of a private person or entity that
provides a detention facility or staff for a detention facility, or
person or agent of a public or private entity under contract with a
detention facility, or a volunteer of a private or public entity
detention facility, who engages in sexual activity with a consenting
adult who is confined in a detention facility, is guilty of a public
offense.
(3) An employee with a department, board, or authority under the
Youth and Adult Correctional Agency or a facility under contract with
a department, board, or authority under the Youth and Adult
Correctional Agency, 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 guilty of a
public offense.
(b) As used in this section, the term "public entity" means the
state, federal government, a city, a county, a city and county, a
joint county jail district, or any entity created as a result of a
joint powers agreement between two or more public entities.
(c) As used in this section, the term "detention facility" means:
(1) A prison, jail, camp, or other correctional facility used for
the confinement of adults or both adults and minors.
(2) A building or facility used for the confinement of adults or
adults and minors pursuant to a contract with a public entity.
(3) A room that is used for holding persons for interviews,
interrogations, or investigations and that is separate from a jail or
located in the administrative area of a law enforcement facility.
(4) A vehicle used to transport confined persons during their
period of confinement.
(5) A court holding facility located within or adjacent to a court
building that is used for the confinement of persons for the purpose
of court appearances.
(d) As used in this section, "sexual activity" means:
(1) Sexual intercourse.
(2) Sodomy, as defined in subdivision (a) of Section 286.
(3) Oral copulation, as defined in subdivision (a) of Section
288a.
(4) Sexual penetration, as defined in subdivision (k) of Section
289.
(5) The rubbing or touching of the 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.
(e) Consent by a confined person or parolee to sexual activity
proscribed by this section is not a defense to a criminal prosecution
for violation of this section.
(f) This section does not apply to sexual activity between
consenting adults that occurs during an 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, to physical contact or penetration made
pursuant to a lawful search, or bona fide medical examinations or
treatments, including clinical treatments.
(g) Any violation of paragraph (1) of subdivision (a), or a
violation of paragraph (2) or (3) of subdivision (a) as described in
paragraph (5) of subdivision (d), is a misdemeanor.
(h) Any violation of paragraph (2) or (3) of subdivision (a), as
described in paragraph (1), (2), (3), or (4) of subdivision (d),
shall be punished by imprisonment in a county jail not exceeding one
year, or in the state prison, or by a fine of not more than ten
thousand dollars ($10,000) or by both that fine and imprisonment.
(i) Any person previously convicted of a violation of this section
shall, upon a subsequent violation, be guilty of a felony.
(j) Anyone who is convicted of a felony violation of this section
who is employed by a department, board, or authority within the Youth
and Adult Correctional Agency shall be terminated in accordance with
the State Civil Service Act (Part 2 (commencing with Section 18500)
of Title 2 of Division 5 of the Government Code). Anyone who has been
convicted of a felony violation of this section shall not be
eligible to be hired or reinstated by a department, board, or
authority within the Youth and Adult Correctional Agency.
281. (a) Every person having a husband or wife living, who marries
any other person, except in the cases specified in Section 282, is
guilty of bigamy.
(b) Upon a trial for bigamy, it is not necessary to prove either
of the marriages by the register, certificate, or other record
evidence thereof, but the marriages may be proved by evidence which
is admissible to prove a marriage in other cases; and when the second
marriage took place out of this state, proof of that fact,
accompanied with proof of cohabitation thereafter in this state, is
sufficient to sustain the charge.
282. Section 281 does not extend to any of the following:
(a) To any person by reason of any former marriage whose husband
or wife by such marriage has been absent for five successive years
without being known to such person within that time to be living.
(b) To any person by reason of any former marriage which has been
pronounced void, annulled, or dissolved by the judgment of a
competent court.
283. Bigamy is punishable by a fine not exceeding ten thousand
dollars ($10,000) or by imprisonment in a county jail not exceeding
one year or in the state prison.
284. Every person who knowingly and willfully marries the husband
or wife of another, in any case in which such husband or wife would
be punishable under the provisions of this chapter, is punishable by
fine not less than five thousand dollars ($5,000), or by imprisonment
in the state prison.
285. Persons being within the degrees of consanguinity within which
marriages are declared by law to be incestuous and void, who
intermarry with each other, or who being 14 years of age or older,
commit fornication or adultery with each other, are punishable by
imprisonment in the state prison.
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.
(b) (1) Except as provided in Section 288, 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.
(2) Except as provided in Section 288, any person over the age of
21 years who participates in an act of sodomy with another person who
is under 16 years of age shall be guilty of a felony.
(c) (1) 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, six, or eight years.
(2) (A) 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, six, or eight years.
(B) 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.
(C) Any person who commits an act of sodomy with another person
who is a minor 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 7, 9, or 11 years.
(D) This paragraph does not preclude prosecution under Section
269, Section 288.7, or any other provision of law.
(3) Any person who commits an act of sodomy 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,
shall be punished by imprisonment in the state prison for three, six,
or eight years.
(d) (1) Any person who, while voluntarily acting in concert with
another person, either personally or aiding and abetting that other
person, commits an act of sodomy when the act is accomplished against
the victim's will by means of force 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, shall be punished by imprisonment in the state prison for
five, seven, or nine years.
(2) Any person who, while voluntarily acting in concert with
another person, either personally or aiding and abetting that other
person, commits an act of sodomy upon a victim who is under 14 years
of age, when the act is accomplished against the victim's will by
means of force or fear of immediate and unlawful bodily injury on the
victim or another person, shall be punished by imprisonment in the
state prison for 10, 12, or 14 years.
(3) Any person who, while voluntarily acting in concert with
another person, either personally or aiding and abetting that other
person, commits an act of sodomy upon a victim who is a minor 14
years of age or older, when the act is accomplished against the
victim's will by means of force or fear of immediate and unlawful
bodily injury on the victim or another person, shall be punished by
imprisonment in the state prison for 7, 9, or 11 years.
(4) This subdivision does not preclude prosecution under Section
269, Section 288.7, or any other provision of law.
(e) Any person who participates in an act of sodomy with any
person of any age while confined in any state prison, as defined in
Section 4504, or in any local detention facility, as defined in
Section 6031.4, shall be punished by imprisonment in the state
prison, or in a county jail for not more than one year.
(f) 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, 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.
(g) Except as provided in subdivision (h), a person who commits an
act of sodomy, 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, shall be punished by imprisonment in the
state prison for three, six, or eight years. Notwithstanding the
existence of a conservatorship pursuant to 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 consent.
(h) Any person who commits an act of sodomy, 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, 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 not more than one year. Notwithstanding the existence of a
conservatorship pursuant to 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.
(i) Any person who commits an act of sodomy, where the victim is
prevented from resisting by an 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 three, six, or eight years.
(j) Any person who commits an act of sodomy, where the victim
submits under the belief that the person committing the act is the
victim's spouse, 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 three, six, or eight years.
(k) Any person who commits an act of sodomy, where 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 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.
(l) As used in subdivisions (c) and (d), "threatening to retaliate"
means a threat to kidnap or falsely imprison, or inflict extreme
pain, serious bodily injury, or death.
(m) In addition to any punishment imposed under this section, the
judge may assess a fine not to exceed seventy dollars ($70) against
any person who violates this section, with the proceeds of this fine
to be used in accordance with Section 1463.23. The court, however,
shall take into consideration the defendant's ability to pay, and no
defendant shall be denied probation because of his or her inability
to pay the fine permitted under this subdivision.
286.5. Any person who sexually assaults any animal protected by
Section 597f for the purpose of arousing or gratifying the sexual
desire of the person is guilty of a misdemeanor.
288. (a) Except as provided in subdivision (i), any person who
willfully and lewdly commits any lewd or lascivious act, including
any of the acts constituting other crimes provided for in Part 1,
upon or with the body, or any part or member thereof, of a child who
is under the age of 14 years, with the intent of arousing, appealing
to, or gratifying the lust, passions, or sexual desires of that
person or the child, is guilty of a felony and shall be punished by
imprisonment in the state prison for three, six, or eight years.
(b) (1) Any person who commits an act described in subdivision (a)
by use of force, violence, duress, menace, or fear of immediate and
unlawful bodily injury on the victim or another person, is guilty of
a felony and shall be punished by imprisonment in the state prison
for 5, 8, or 10 years.
(2) Any person who is a caretaker and commits an act described in
subdivision (a) upon a dependent person by use of force, violence,
duress, menace, or fear of immediate and unlawful bodily injury on
the victim or another person, with the intent described in
subdivision (a), is guilty of a felony and shall be punished by
imprisonment in the state prison for 5, 8, or 10 years.
(c) (1) Any person who commits an act described in subdivision (a)
with the intent described in that subdivision, and the victim is a
child of 14 or 15 years, and that person is at least 10 years older
than the child, is guilty of a public offense and shall be punished
by imprisonment in the state prison for one, two, or three years, or
by imprisonment in a county jail for not more than one year. In
determining whether the person is at least 10 years older than the
child, the difference in age shall be measured from the birth date of
the person to the birth date of the child.
(2) Any person who is a caretaker and commits an act described in
subdivision (a) upon a dependent person, with the intent described in
subdivision (a), is guilty of a public offense and shall be punished
by imprisonment in the state prison for one, two, or three years, or
by imprisonment in a county jail for not more than one year.
(d) In any arrest or prosecution under this section or Section
288.5, the peace officer, district attorney, and the court shall
consider the needs of the child victim or dependent person and shall
do whatever is necessary, within existing budgetary resources, and
constitutionally permissible to prevent psychological harm to the
child victim or to prevent psychological harm to the dependent person
victim resulting from participation in the court process.
(e) Upon the conviction of any person for a violation of
subdivision (a) or (b), the court may, in addition to any other
penalty or fine imposed, order the defendant to pay an additional
fine not to exceed ten thousand dollars ($10,000). In setting the
amount of the fine, the court shall consider any relevant factors,
including, but not limited to, the seriousness and gravity of the
offense, the circumstances of its commission, whether the defendant
derived any economic gain as a result of the crime, and the extent to
which the victim suffered economic losses as a result of the crime.
Every fine imposed and collected under this section shall be
deposited in the Victim-Witness Assistance Fund to be available for
appropriation to fund child sexual exploitation and child sexual
abuse victim counseling centers and prevention programs pursuant to
Section 13837.
If the court orders a fine imposed pursuant to this subdivision,
the actual administrative cost of collecting that fine, not to exceed
2 percent of the total amount paid, may be paid into the general
fund of the county treasury for the use and benefit of the county.
(f) For purposes of paragraph (2) of subdivision (b) and paragraph
(2) of subdivision (c), the following definitions apply:
(1) "Caretaker" means an owner, operator, administrator, employee,
independent contractor, agent, or volunteer of any of the following
public or private facilities when the facilities provide care for
elder or dependent persons:
(A) Twenty-four hour health facilities, as defined in Sections
1250, 1250.2, and 1250.3 of the Health and Safety Code.
(B) Clinics.
(C) Home health agencies.
(D) Adult day health care centers.
(E) Secondary schools that serve dependent persons and
postsecondary educational institutions that serve dependent persons
or elders.
(F) Sheltered workshops.
(G) Camps.
(H) Community care facilities, as defined by Section 1402 of the
Health and Safety Code, and residential care facilities for the
elderly, as defined in Section 1569.2 of the Health and Safety Code.
(I) Respite care facilities.
(J) Foster homes.
(K) Regional centers for persons with developmental disabilities.
(L) A home health agency licensed in accordance with Chapter 8
(commencing with Section 1725) of Division 2 of the Health and Safety
Code.
(M) An agency that supplies in-home supportive services.
(N) Board and care facilities.
(O) Any other protective or public assistance agency that provides
health services or social services to elder or dependent persons,
including, but not limited to, in-home supportive services, as
defined in Section 14005.14 of the Welfare and Institutions Code.
(P) Private residences.
(2) "Board and care facilities" means licensed or unlicensed
facilities that provide assistance with one or more of the following
activities:
(A) Bathing.
(B) Dressing.
(C) Grooming.
(D) Medication storage.
(E) Medical dispensation.
(F) Money management.
(3) "Dependent person" means any person who has a physical or
mental impairment that substantially restricts his or her ability to
carry out normal activities or to protect his or her rights,
including, but not limited to, persons who have physical or
developmental disabilities or whose physical or mental abilities have
significantly diminished because of age. "Dependent person" includes
any person who is admitted as an inpatient to a 24-hour health
facility, as defined in Sections 1250, 1250.2, and 1250.3 of the
Health and Safety Code.
(g) Paragraph (2) of subdivision (b) and paragraph (2) of
subdivision (c) apply to the owners, operators, administrators,
employees, independent contractors, agents, or volunteers working at
these public or private facilities and only to the extent that the
individuals personally commit, conspire, aid, abet, or facilitate any
act prohibited by paragraph (2) of subdivision (b) and paragraph (2)
of subdivision (c).
(h) Paragraph (2) of subdivision (b) and paragraph (2) of
subdivision (c) do not apply to a caretaker who is a spouse of, or
who is in an equivalent domestic relationship with, the dependent
person under care.
(i) (1) Any person convicted of a violation of subdivision (a)
shall be imprisoned in the state prison for life with the possibility
of parole if the defendant personally inflicted bodily harm upon the
victim.
(2) The penalty provided in this subdivision shall only apply if
the fact that the defendant personally inflicted bodily harm upon the
victim is pled and proved.
(3) As used in this subdivision, "bodily harm" means any
substantial physical injury resulting from the use of force that is
more than the force necessary to commit the offense.
288.1. Any person convicted of committing any lewd or lascivious
act including any of the acts constituting other crimes provided for
in Part 1 of this code upon or with the body, or any part or member
thereof, of a child under the age of 14 years shall not have his or
her sentence suspended until the court obtains a report from a
reputable psychiatrist, from a reputable psychologist who meets the
standards set forth in Section 1027, as to the mental condition of
that person.
288.2. (a) Every person who, with knowledge that a person is a
minor, or who fails to exercise reasonable care in ascertaining the
true age of a minor, knowingly distributes, sends, causes to be sent,
exhibits, or offers to distribute or exhibit by any means,
including, but not limited to, live or recorded telephone messages,
any harmful matter, as defined in Section 313, to a minor with the
intent of arousing, appealing to, or gratifying the lust or passions
or sexual desires of that person or of a minor, and with the intent
or for the purpose of seducing a minor, is guilty of a public offense
and shall be punished by imprisonment in the state prison or in a
county jail.
A person convicted of a second and any subsequent conviction for a
violation of this section is guilty of a felony.
(b) Every person who, with knowledge that a person is a minor,
knowingly distributes, sends, causes to be sent, exhibits, or offers
to distribute or exhibit by electronic mail, the Internet, as defined
in Section 17538 of the Business and Professions Code, or a
commercial online service, any harmful matter, as defined in Section
313, to a minor with the intent of arousing, appealing to, or
gratifying the lust or passions or sexual desires of that person or
of a minor, and with the intent, or for the purpose of seducing a
minor, is guilty of a public offense and shall be punished by
imprisonment in the state prison or in a county jail.
A person convicted of a second and any subsequent conviction for a
violation of this section is guilty of a felony.
(c) It shall be a defense to any prosecution under this section
that a parent or guardian committed the act charged in aid of
legitimate sex education.
(d) It shall be a defense in any prosecution under this section
that the act charged was committed in aid of legitimate scientific or
educational purposes.
(e) It does not constitute a violation of this section for a
telephone corporation, as defined in Section 234 of the Public
Utilities Code, a cable television company franchised pursuant to
Section 53066 of the Government Code, or any of its affiliates, an
Internet service provider, or commercial online service provider, to
carry, broadcast, or transmit messages described in this section or
perform related activities in providing telephone, cable television,
Internet, or commercial online services.
288.3. (a) Every person who contacts or communicates with a minor,
or attempts to contact or communicate with a minor, who knows or
reasonably should know that the person is a minor, with intent to
commit an offense specified in Section 207, 209, 261, 264.1, 273a,
286, 288, 288a, 288.2, 289, 311.1, 311.2, 311.4 or 311.11 involving
the minor shall be punished by imprisonment in the state prison for
the term prescribed for an attempt to commit the intended offense.
(b) As used in this section, "contacts or communicates with" shall
include direct and indirect contact or communication that may be
achieved personally or by use of an agent or agency, any print
medium, any postal service, a common carrier or communication common
carrier, any electronic communications system, or any
telecommunications, wire, computer, or radio communications device or
system.
(c) A person convicted of a violation of subdivision (a) who has
previously been convicted of a violation of subdivision (a) shall be
punished by an additional and consecutive term of imprisonment in the
state prison for five years.
288.4. (a) (1) Every person who, motivated by an unnatural or
abnormal sexual interest in children, arranges a meeting with a minor
or a person he or she believes to be a minor for the purpose of
exposing his or her genitals or pubic or rectal area, having the
child expose his or her genitals or pubic or rectal area, or engaging
in lewd or lascivious behavior, shall be punished by a fine not
exceeding five thousand dollars ($5,000), by imprisonment in a county
jail not exceeding one year, or by both the fine and imprisonment.
(2) Every person who violates this subdivision after a prior
conviction for an offense listed in subdivision (c) of Section 290
shall be punished by imprisonment in the state prison.
(b) Every person described in paragraph (1) of subdivision (a) who
goes to the arranged meeting place at or about the arranged time,
shall be punished by imprisonment in the state prison for two, three,
or four years.
(c) Nothing in this section shall preclude or prohibit prosecution
under any other provision of law.
288.5. (a) Any person who either resides in the same home with the
minor child or has recurring access to the child, who over a period
of time, not less than three months in duration, engages in three or
more acts of substantial sexual conduct with a child under the age of
14 years at the time of the commission of the offense, as defined in
subdivision (b) of Section 1203.066, or three or more acts of lewd
or lascivious conduct, as defined in Section 288, with a child under
the age of 14 years at the time of the commission of the offense is
guilty of the offense of continuous sexual abuse of a child and shall
be punished by imprisonment in the state prison for a term of 6, 12,
or 16 years.
(b) To convict under this section the trier of fact, if a jury,
need unanimously agree only that the requisite number of acts
occurred not on which acts constitute the requisite number.
(c) No other act of substantial sexual conduct, as defined in
subdivision (b) of Section 1203.066, with a child under 14 years of
age at the time of the commission of the offenses, or lewd and
lascivious acts, as defined in Section 288, involving the same victim
may be charged in the same proceeding with a charge under this
section unless the other charged offense occurred outside the time
period charged under this section or the other offense is charged in
the alternative. A defendant may be charged with only one count under
this section unless more than one victim is involved in which case a
separate count may be charged for each victim.
288.7. (a) Any person 18 years of age or older who engages in
sexual intercourse or sodomy with a child who is 10 years of age or
younger is guilty of a felony and shall be punished by imprisonment
in the state prison for a term of 25 years to life.
(b) Any person 18 years of age or older who engages in oral
copulation or sexual penetration, as defined in Section 289, with a
child who is 10 years of age or younger is guilty of a felony and
shall be punished by imprisonment in the state prison for a term of
15 years to life.
288a. (a) Oral copulation is the act of copulating the mouth of one
person with the sexual organ or anus of another person.
(b) (1) Except as provided in Section 288, any person who
participates in an act of oral copulation 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.
(2) Except as provided in Section 288, any person over the age of
21 years who participates in an act of oral copulation with another
person who is under 16 years of age is guilty of a felony.
(c) (1) Any person who participates in an act of oral copulation
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, six, or eight years.
(2) (A) Any person who commits an act of oral copulation 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 oral copulation upon a 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 8,
10, or 12 years.
(C) Any person who commits an act of oral copulation 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.
(3) Any person who commits an act of oral copulation 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, shall be punished by imprisonment in the state prison for
three, six, or eight years.
(d) (1) Any person who, while voluntarily acting in concert with
another person, either personally or by aiding and abetting that
other person, commits an act of oral copulation (1) when the act is
accomplished against the victim's will by means of force or fear of
immediate and unlawful bodily injury on the victim or another person,
or (2) 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, or (3) where 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, shall be
punished by imprisonment in the state prison for five, seven, or
nine 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 described under
paragraph (3), that a mental disorder or developmental or physical
disability rendered the alleged victim incapable of giving legal
consent.
(2) Any person who, while voluntarily acting in concert with
another person, either personally or aiding and abetting that other
person, commits an act of oral copulation upon a victim who is under
14 years of age, when the act is accomplished against the victim's
will by means of force or fear of immediate and unlawful bodily
injury on the victim or another person, shall be punished by
imprisonment in the state prison for 10, 12, or 14 years.
(3) Any person who, while voluntarily acting in concert with
another person, either personally or aiding and abetting that other
person, commits an act of oral copulation upon a victim who is a
minor 14 years of age or older, when the act is accomplished against
the victim's will by means of force 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.
(4) This paragraph does not preclude prosecution under Section
269, Section 288.7, or any other provision of law.
(e) Any person who participates in an act of oral copulation while
confined in any state prison, as defined in Section 4504 or in any
local detention facility as defined in Section 6031.4, shall be
punished by imprisonment in the state prison, or in a county jail for
a period of not more than one year.
(f) Any person who commits an act of oral copulation, 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 a period of 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 oral copulation served a
professional purpose when it served no professional purpose.
(g) Except as provided in subdivision (h), any person who commits
an act of oral copulation, 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, shall be punished by
imprisonment in the state prison, for three, six, or eight years.
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 consent.
(h) Any person who commits an act of oral copulation, 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, 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.
(i) Any person who commits an act of oral copulation, where 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.
(j) Any person who commits an act of oral copulation, where the
victim submits under the belief that the person committing the act is
the victim's spouse, 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.
(k) Any person who commits an act of oral copulation, where 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.
(l) As used in subdivisions (c) and (d), "threatening to retaliate"
means a threat to kidnap or falsely imprison, or to inflict extreme
pain, serious bodily injury, or death.
(m) In addition to any punishment imposed under this section, the
judge may assess a fine not to exceed seventy dollars ($70) against
any person who violates this section, with the proceeds of this fine
to be used in accordance with Section 1463.23. The court shall,
however, take into consideration the defendant's ability to pay, and
no defendant shall be denied probation because of his or her
inability to pay the fine permitted under this subdivision.
289. (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 the victim's spouse, 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 the county jail for a period of not more than one year.
(i) Except as provided in Section 288, any person over the age of
21 years 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.
289.5. (a) Every person who flees to this state with the intent to
avoid prosecution for an offense which, if committed or attempted in
this state, would have been punishable as one or more of the offenses
described in subdivision (c) of Section 290, and who has been
charged with that offense under the laws of the jurisdiction from
which the person fled, is guilty of a misdemeanor.
(b) Every person who flees to this state with the intent to avoid
custody or confinement imposed for conviction of an offense under the
laws of the jurisdiction from which the person fled, which offense,
if committed or attempted in this state, would have been punishable
as one or more of the offenses described in subdivision (c) of
Section 290, is guilty of a misdemeanor.
(c) No person shall be charged and prosecuted for an offense under
this section unless the prosecutor has requested the other
jurisdiction to extradite the person and the other jurisdiction has
refused to do so.
(d) Any person who is convicted of any felony sex offense
described in subdivision (c) of Section 290, that is committed after
fleeing to this state under the circumstances described in
subdivision (a) or (b) of this section, shall, in addition and
consecutive to the punishment for that conviction, receive an
additional term of two years' imprisonment.
289.6. (a) (1) An employee or officer of a public entity health
facility, or an employee, officer, or agent of a private person or
entity that provides a health facility or staff for a health facility
under contract with a public entity, who engages in sexual activity
with a consenting adult who is confined in a health facility is
guilty of a public offense. As used in this paragraph, "health
facility" means a health facility as defined in subdivisions (b),
(e), (g), (h), and (j), and subparagraph (C) of paragraph (2) of
subdivision (i) of Section 1250 of the Health and Safety Code, in
which the victim has been confined involuntarily.
(2) An employee or officer of a public entity detention facility,
or an employee, officer, or agent of a private person or entity that
provides a detention facility or staff for a detention facility, or
person or agent of a public or private entity under contract with a
detention facility, or a volunteer of a private or public entity
detention facility, who engages in sexual activity with a consenting
adult who is confined in a detention facility, is guilty of a public
offense.
(3) An employee with a department, board, or authority under the
Youth and Adult Correctional Agency or a facility under contract with
a department, board, or authority under the Youth and Adult
Correctional Agency, 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 guilty of a
public offense.
(b) As used in this section, the term "public entity" means the
state, federal government, a city, a county, a city and county, a
joint county jail district, or any entity created as a result of a
joint powers agreement between two or more public entities.
(c) As used in this section, the term "detention facility" means:
(1) A prison, jail, camp, or other correctional facility used for
the confinement of adults or both adults and minors.
(2) A building or facility used for the confinement of adults or
adults and minors pursuant to a contract with a public entity.
(3) A room that is used for holding persons for interviews,
interrogations, or investigations and that is separate from a jail or
located in the administrative area of a law enforcement facility.
(4) A vehicle used to transport confined persons during their
period of confinement.
(5) A court holding facility located within or adjacent to a court
building that is used for the confinement of persons for the purpose
of court appearances.
(d) As used in this section, "sexual activity" means:
(1) Sexual intercourse.
(2) Sodomy, as defined in subdivision (a) of Section 286.
(3) Oral copulation, as defined in subdivision (a) of Section
288a.
(4) Sexual penetration, as defined in subdivision (k) of Section
289.
(5) The rubbing or touching of the 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.
(e) Consent by a confined person or parolee to sexual activity
proscribed by this section is not a defense to a criminal prosecution
for violation of this section.
(f) This section does not apply to sexual activity between
consenting adults that occurs during an 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, to physical contact or penetration made
pursuant to a lawful search, or bona fide medical examinations or
treatments, including clinical treatments.
(g) Any violation of paragraph (1) of subdivision (a), or a
violation of paragraph (2) or (3) of subdivision (a) as described in
paragraph (5) of subdivision (d), is a misdemeanor.
(h) Any violation of paragraph (2) or (3) of subdivision (a), as
described in paragraph (1), (2), (3), or (4) of subdivision (d),
shall be punished by imprisonment in a county jail not exceeding one
year, or in the state prison, or by a fine of not more than ten
thousand dollars ($10,000) or by both that fine and imprisonment.
(i) Any person previously convicted of a violation of this section
shall, upon a subsequent violation, be guilty of a felony.
(j) Anyone who is convicted of a felony violation of this section
who is employed by a department, board, or authority within the Youth
and Adult Correctional Agency shall be terminated in accordance with
the State Civil Service Act (Part 2 (commencing with Section 18500)
of Title 2 of Division 5 of the Government Code). Anyone who has been
convicted of a felony violation of this section shall not be
eligible to be hired or reinstated by a department, board, or
authority within the Youth and Adult Correctional Agency.
281. (a) Every person having a husband or wife living, who marries
any other person, except in the cases specified in Section 282, is
guilty of bigamy.
(b) Upon a trial for bigamy, it is not necessary to prove either
of the marriages by the register, certificate, or other record
evidence thereof, but the marriages may be proved by evidence which
is admissible to prove a marriage in other cases; and when the second
marriage took place out of this state, proof of that fact,
accompanied with proof of cohabitation thereafter in this state, is
sufficient to sustain the charge.
282. Section 281 does not extend to any of the following:
(a) To any person by reason of any former marriage whose husband
or wife by such marriage has been absent for five successive years
without being known to such person within that time to be living.
(b) To any person by reason of any former marriage which has been
pronounced void, annulled, or dissolved by the judgment of a
competent court.
283. Bigamy is punishable by a fine not exceeding ten thousand
dollars ($10,000) or by imprisonment in a county jail not exceeding
one year or in the state prison.
284. Every person who knowingly and willfully marries the husband
or wife of another, in any case in which such husband or wife would
be punishable under the provisions of this chapter, is punishable by
fine not less than five thousand dollars ($5,000), or by imprisonment
in the state prison.
285. Persons being within the degrees of consanguinity within which
marriages are declared by law to be incestuous and void, who
intermarry with each other, or who being 14 years of age or older,
commit fornication or adultery with each other, are punishable by
imprisonment in the state prison.
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.
(b) (1) Except as provided in Section 288, 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.
(2) Except as provided in Section 288, any person over the age of
21 years who participates in an act of sodomy with another person who
is under 16 years of age shall be guilty of a felony.
(c) (1) 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, six, or eight years.
(2) (A) 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, six, or eight years.
(B) 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.
(C) Any person who commits an act of sodomy with another person
who is a minor 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 7, 9, or 11 years.
(D) This paragraph does not preclude prosecution under Section
269, Section 288.7, or any other provision of law.
(3) Any person who commits an act of sodomy 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,
shall be punished by imprisonment in the state prison for three, six,
or eight years.
(d) (1) Any person who, while voluntarily acting in concert with
another person, either personally or aiding and abetting that other
person, commits an act of sodomy when the act is accomplished against
the victim's will by means of force 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, shall be punished by imprisonment in the state prison for
five, seven, or nine years.
(2) Any person who, while voluntarily acting in concert with
another person, either personally or aiding and abetting that other
person, commits an act of sodomy upon a victim who is under 14 years
of age, when the act is accomplished against the victim's will by
means of force or fear of immediate and unlawful bodily injury on the
victim or another person, shall be punished by imprisonment in the
state prison for 10, 12, or 14 years.
(3) Any person who, while voluntarily acting in concert with
another person, either personally or aiding and abetting that other
person, commits an act of sodomy upon a victim who is a minor 14
years of age or older, when the act is accomplished against the
victim's will by means of force or fear of immediate and unlawful
bodily injury on the victim or another person, shall be punished by
imprisonment in the state prison for 7, 9, or 11 years.
(4) This subdivision does not preclude prosecution under Section
269, Section 288.7, or any other provision of law.
(e) Any person who participates in an act of sodomy with any
person of any age while confined in any state prison, as defined in
Section 4504, or in any local detention facility, as defined in
Section 6031.4, shall be punished by imprisonment in the state
prison, or in a county jail for not more than one year.
(f) 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, 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.
(g) Except as provided in subdivision (h), a person who commits an
act of sodomy, 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, shall be punished by imprisonment in the
state prison for three, six, or eight years. Notwithstanding the
existence of a conservatorship pursuant to 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 consent.
(h) Any person who commits an act of sodomy, 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, 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 not more than one year. Notwithstanding the existence of a
conservatorship pursuant to 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.
(i) Any person who commits an act of sodomy, where the victim is
prevented from resisting by an 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 three, six, or eight years.
(j) Any person who commits an act of sodomy, where the victim
submits under the belief that the person committing the act is the
victim's spouse, 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 three, six, or eight years.
(k) Any person who commits an act of sodomy, where 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 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.
(l) As used in subdivisions (c) and (d), "threatening to retaliate"
means a threat to kidnap or falsely imprison, or inflict extreme
pain, serious bodily injury, or death.
(m) In addition to any punishment imposed under this section, the
judge may assess a fine not to exceed seventy dollars ($70) against
any person who violates this section, with the proceeds of this fine
to be used in accordance with Section 1463.23. The court, however,
shall take into consideration the defendant's ability to pay, and no
defendant shall be denied probation because of his or her inability
to pay the fine permitted under this subdivision.
286.5. Any person who sexually assaults any animal protected by
Section 597f for the purpose of arousing or gratifying the sexual
desire of the person is guilty of a misdemeanor.
288. (a) Except as provided in subdivision (i), any person who
willfully and lewdly commits any lewd or lascivious act, including
any of the acts constituting other crimes provided for in Part 1,
upon or with the body, or any part or member thereof, of a child who
is under the age of 14 years, with the intent of arousing, appealing
to, or gratifying the lust, passions, or sexual desires of that
person or the child, is guilty of a felony and shall be punished by
imprisonment in the state prison for three, six, or eight years.
(b) (1) Any person who commits an act described in subdivision (a)
by use of force, violence, duress, menace, or fear of immediate and
unlawful bodily injury on the victim or another person, is guilty of
a felony and shall be punished by imprisonment in the state prison
for 5, 8, or 10 years.
(2) Any person who is a caretaker and commits an act described in
subdivision (a) upon a dependent person by use of force, violence,
duress, menace, or fear of immediate and unlawful bodily injury on
the victim or another person, with the intent described in
subdivision (a), is guilty of a felony and shall be punished by
imprisonment in the state prison for 5, 8, or 10 years.
(c) (1) Any person who commits an act described in subdivision (a)
with the intent described in that subdivision, and the victim is a
child of 14 or 15 years, and that person is at least 10 years older
than the child, is guilty of a public offense and shall be punished
by imprisonment in the state prison for one, two, or three years, or
by imprisonment in a county jail for not more than one year. In
determining whether the person is at least 10 years older than the
child, the difference in age shall be measured from the birth date of
the person to the birth date of the child.
(2) Any person who is a caretaker and commits an act described in
subdivision (a) upon a dependent person, with the intent described in
subdivision (a), is guilty of a public offense and shall be punished
by imprisonment in the state prison for one, two, or three years, or
by imprisonment in a county jail for not more than one year.
(d) In any arrest or prosecution under this section or Section
288.5, the peace officer, district attorney, and the court shall
consider the needs of the child victim or dependent person and shall
do whatever is necessary, within existing budgetary resources, and
constitutionally permissible to prevent psychological harm to the
child victim or to prevent psychological harm to the dependent person
victim resulting from participation in the court process.
(e) Upon the conviction of any person for a violation of
subdivision (a) or (b), the court may, in addition to any other
penalty or fine imposed, order the defendant to pay an additional
fine not to exceed ten thousand dollars ($10,000). In setting the
amount of the fine, the court shall consider any relevant factors,
including, but not limited to, the seriousness and gravity of the
offense, the circumstances of its commission, whether the defendant
derived any economic gain as a result of the crime, and the extent to
which the victim suffered economic losses as a result of the crime.
Every fine imposed and collected under this section shall be
deposited in the Victim-Witness Assistance Fund to be available for
appropriation to fund child sexual exploitation and child sexual
abuse victim counseling centers and prevention programs pursuant to
Section 13837.
If the court orders a fine imposed pursuant to this subdivision,
the actual administrative cost of collecting that fine, not to exceed
2 percent of the total amount paid, may be paid into the general
fund of the county treasury for the use and benefit of the county.
(f) For purposes of paragraph (2) of subdivision (b) and paragraph
(2) of subdivision (c), the following definitions apply:
(1) "Caretaker" means an owner, operator, administrator, employee,
independent contractor, agent, or volunteer of any of the following
public or private facilities when the facilities provide care for
elder or dependent persons:
(A) Twenty-four hour health facilities, as defined in Sections
1250, 1250.2, and 1250.3 of the Health and Safety Code.
(B) Clinics.
(C) Home health agencies.
(D) Adult day health care centers.
(E) Secondary schools that serve dependent persons and
postsecondary educational institutions that serve dependent persons
or elders.
(F) Sheltered workshops.
(G) Camps.
(H) Community care facilities, as defined by Section 1402 of the
Health and Safety Code, and residential care facilities for the
elderly, as defined in Section 1569.2 of the Health and Safety Code.
(I) Respite care facilities.
(J) Foster homes.
(K) Regional centers for persons with developmental disabilities.
(L) A home health agency licensed in accordance with Chapter 8
(commencing with Section 1725) of Division 2 of the Health and Safety
Code.
(M) An agency that supplies in-home supportive services.
(N) Board and care facilities.
(O) Any other protective or public assistance agency that provides
health services or social services to elder or dependent persons,
including, but not limited to, in-home supportive services, as
defined in Section 14005.14 of the Welfare and Institutions Code.
(P) Private residences.
(2) "Board and care facilities" means licensed or unlicensed
facilities that provide assistance with one or more of the following
activities:
(A) Bathing.
(B) Dressing.
(C) Grooming.
(D) Medication storage.
(E) Medical dispensation.
(F) Money management.
(3) "Dependent person" means any person who has a physical or
mental impairment that substantially restricts his or her ability to
carry out normal activities or to protect his or her rights,
including, but not limited to, persons who have physical or
developmental disabilities or whose physical or mental abilities have
significantly diminished because of age. "Dependent person" includes
any person who is admitted as an inpatient to a 24-hour health
facility, as defined in Sections 1250, 1250.2, and 1250.3 of the
Health and Safety Code.
(g) Paragraph (2) of subdivision (b) and paragraph (2) of
subdivision (c) apply to the owners, operators, administrators,
employees, independent contractors, agents, or volunteers working at
these public or private facilities and only to the extent that the
individuals personally commit, conspire, aid, abet, or facilitate any
act prohibited by paragraph (2) of subdivision (b) and paragraph (2)
of subdivision (c).
(h) Paragraph (2) of subdivision (b) and paragraph (2) of
subdivision (c) do not apply to a caretaker who is a spouse of, or
who is in an equivalent domestic relationship with, the dependent
person under care.
(i) (1) Any person convicted of a violation of subdivision (a)
shall be imprisoned in the state prison for life with the possibility
of parole if the defendant personally inflicted bodily harm upon the
victim.
(2) The penalty provided in this subdivision shall only apply if
the fact that the defendant personally inflicted bodily harm upon the
victim is pled and proved.
(3) As used in this subdivision, "bodily harm" means any
substantial physical injury resulting from the use of force that is
more than the force necessary to commit the offense.
288.1. Any person convicted of committing any lewd or lascivious
act including any of the acts constituting other crimes provided for
in Part 1 of this code upon or with the body, or any part or member
thereof, of a child under the age of 14 years shall not have his or
her sentence suspended until the court obtains a report from a
reputable psychiatrist, from a reputable psychologist who meets the
standards set forth in Section 1027, as to the mental condition of
that person.
288.2. (a) Every person who, with knowledge that a person is a
minor, or who fails to exercise reasonable care in ascertaining the
true age of a minor, knowingly distributes, sends, causes to be sent,
exhibits, or offers to distribute or exhibit by any means,
including, but not limited to, live or recorded telephone messages,
any harmful matter, as defined in Section 313, to a minor with the
intent of arousing, appealing to, or gratifying the lust or passions
or sexual desires of that person or of a minor, and with the intent
or for the purpose of seducing a minor, is guilty of a public offense
and shall be punished by imprisonment in the state prison or in a
county jail.
A person convicted of a second and any subsequent conviction for a
violation of this section is guilty of a felony.
(b) Every person who, with knowledge that a person is a minor,
knowingly distributes, sends, causes to be sent, exhibits, or offers
to distribute or exhibit by electronic mail, the Internet, as defined
in Section 17538 of the Business and Professions Code, or a
commercial online service, any harmful matter, as defined in Section
313, to a minor with the intent of arousing, appealing to, or
gratifying the lust or passions or sexual desires of that person or
of a minor, and with the intent, or for the purpose of seducing a
minor, is guilty of a public offense and shall be punished by
imprisonment in the state prison or in a county jail.
A person convicted of a second and any subsequent conviction for a
violation of this section is guilty of a felony.
(c) It shall be a defense to any prosecution under this section
that a parent or guardian committed the act charged in aid of
legitimate sex education.
(d) It shall be a defense in any prosecution under this section
that the act charged was committed in aid of legitimate scientific or
educational purposes.
(e) It does not constitute a violation of this section for a
telephone corporation, as defined in Section 234 of the Public
Utilities Code, a cable television company franchised pursuant to
Section 53066 of the Government Code, or any of its affiliates, an
Internet service provider, or commercial online service provider, to
carry, broadcast, or transmit messages described in this section or
perform related activities in providing telephone, cable television,
Internet, or commercial online services.
288.3. (a) Every person who contacts or communicates with a minor,
or attempts to contact or communicate with a minor, who knows or
reasonably should know that the person is a minor, with intent to
commit an offense specified in Section 207, 209, 261, 264.1, 273a,
286, 288, 288a, 288.2, 289, 311.1, 311.2, 311.4 or 311.11 involving
the minor shall be punished by imprisonment in the state prison for
the term prescribed for an attempt to commit the intended offense.
(b) As used in this section, "contacts or communicates with" shall
include direct and indirect contact or communication that may be
achieved personally or by use of an agent or agency, any print
medium, any postal service, a common carrier or communication common
carrier, any electronic communications system, or any
telecommunications, wire, computer, or radio communications device or
system.
(c) A person convicted of a violation of subdivision (a) who has
previously been convicted of a violation of subdivision (a) shall be
punished by an additional and consecutive term of imprisonment in the
state prison for five years.
288.4. (a) (1) Every person who, motivated by an unnatural or
abnormal sexual interest in children, arranges a meeting with a minor
or a person he or she believes to be a minor for the purpose of
exposing his or her genitals or pubic or rectal area, having the
child expose his or her genitals or pubic or rectal area, or engaging
in lewd or lascivious behavior, shall be punished by a fine not
exceeding five thousand dollars ($5,000), by imprisonment in a county
jail not exceeding one year, or by both the fine and imprisonment.
(2) Every person who violates this subdivision after a prior
conviction for an offense listed in subdivision (c) of Section 290
shall be punished by imprisonment in the state prison.
(b) Every person described in paragraph (1) of subdivision (a) who
goes to the arranged meeting place at or about the arranged time,
shall be punished by imprisonment in the state prison for two, three,
or four years.
(c) Nothing in this section shall preclude or prohibit prosecution
under any other provision of law.
288.5. (a) Any person who either resides in the same home with the
minor child or has recurring access to the child, who over a period
of time, not less than three months in duration, engages in three or
more acts of substantial sexual conduct with a child under the age of
14 years at the time of the commission of the offense, as defined in
subdivision (b) of Section 1203.066, or three or more acts of lewd
or lascivious conduct, as defined in Section 288, with a child under
the age of 14 years at the time of the commission of the offense is
guilty of the offense of continuous sexual abuse of a child and shall
be punished by imprisonment in the state prison for a term of 6, 12,
or 16 years.
(b) To convict under this section the trier of fact, if a jury,
need unanimously agree only that the requisite number of acts
occurred not on which acts constitute the requisite number.
(c) No other act of substantial sexual conduct, as defined in
subdivision (b) of Section 1203.066, with a child under 14 years of
age at the time of the commission of the offenses, or lewd and
lascivious acts, as defined in Section 288, involving the same victim
may be charged in the same proceeding with a charge under this
section unless the other charged offense occurred outside the time
period charged under this section or the other offense is charged in
the alternative. A defendant may be charged with only one count under
this section unless more than one victim is involved in which case a
separate count may be charged for each victim.
288.7. (a) Any person 18 years of age or older who engages in
sexual intercourse or sodomy with a child who is 10 years of age or
younger is guilty of a felony and shall be punished by imprisonment
in the state prison for a term of 25 years to life.
(b) Any person 18 years of age or older who engages in oral
copulation or sexual penetration, as defined in Section 289, with a
child who is 10 years of age or younger is guilty of a felony and
shall be punished by imprisonment in the state prison for a term of
15 years to life.
288a. (a) Oral copulation is the act of copulating the mouth of one
person with the sexual organ or anus of another person.
(b) (1) Except as provided in Section 288, any person who
participates in an act of oral copulation 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.
(2) Except as provided in Section 288, any person over the age of
21 years who participates in an act of oral copulation with another
person who is under 16 years of age is guilty of a felony.
(c) (1) Any person who participates in an act of oral copulation
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, six, or eight years.
(2) (A) Any person who commits an act of oral copulation 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 oral copulation upon a 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 8,
10, or 12 years.
(C) Any person who commits an act of oral copulation 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.
(3) Any person who commits an act of oral copulation 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, shall be punished by imprisonment in the state prison for
three, six, or eight years.
(d) (1) Any person who, while voluntarily acting in concert with
another person, either personally or by aiding and abetting that
other person, commits an act of oral copulation (1) when the act is
accomplished against the victim's will by means of force or fear of
immediate and unlawful bodily injury on the victim or another person,
or (2) 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, or (3) where 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, shall be
punished by imprisonment in the state prison for five, seven, or
nine 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 described under
paragraph (3), that a mental disorder or developmental or physical
disability rendered the alleged victim incapable of giving legal
consent.
(2) Any person who, while voluntarily acting in concert with
another person, either personally or aiding and abetting that other
person, commits an act of oral copulation upon a victim who is under
14 years of age, when the act is accomplished against the victim's
will by means of force or fear of immediate and unlawful bodily
injury on the victim or another person, shall be punished by
imprisonment in the state prison for 10, 12, or 14 years.
(3) Any person who, while voluntarily acting in concert with
another person, either personally or aiding and abetting that other
person, commits an act of oral copulation upon a victim who is a
minor 14 years of age or older, when the act is accomplished against
the victim's will by means of force 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.
(4) This paragraph does not preclude prosecution under Section
269, Section 288.7, or any other provision of law.
(e) Any person who participates in an act of oral copulation while
confined in any state prison, as defined in Section 4504 or in any
local detention facility as defined in Section 6031.4, shall be
punished by imprisonment in the state prison, or in a county jail for
a period of not more than one year.
(f) Any person who commits an act of oral copulation, 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 a period of 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 oral copulation served a
professional purpose when it served no professional purpose.
(g) Except as provided in subdivision (h), any person who commits
an act of oral copulation, 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, shall be punished by
imprisonment in the state prison, for three, six, or eight years.
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 consent.
(h) Any person who commits an act of oral copulation, 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, 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.
(i) Any person who commits an act of oral copulation, where 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.
(j) Any person who commits an act of oral copulation, where the
victim submits under the belief that the person committing the act is
the victim's spouse, 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.
(k) Any person who commits an act of oral copulation, where 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.
(l) As used in subdivisions (c) and (d), "threatening to retaliate"
means a threat to kidnap or falsely imprison, or to inflict extreme
pain, serious bodily injury, or death.
(m) In addition to any punishment imposed under this section, the
judge may assess a fine not to exceed seventy dollars ($70) against
any person who violates this section, with the proceeds of this fine
to be used in accordance with Section 1463.23. The court shall,
however, take into consideration the defendant's ability to pay, and
no defendant shall be denied probation because of his or her
inability to pay the fine permitted under this subdivision.
289. (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 the victim's spouse, 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 the county jail for a period of not more than one year.
(i) Except as provided in Section 288, any person over the age of
21 years 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.
289.5. (a) Every person who flees to this state with the intent to
avoid prosecution for an offense which, if committed or attempted in
this state, would have been punishable as one or more of the offenses
described in subdivision (c) of Section 290, and who has been
charged with that offense under the laws of the jurisdiction from
which the person fled, is guilty of a misdemeanor.
(b) Every person who flees to this state with the intent to avoid
custody or confinement imposed for conviction of an offense under the
laws of the jurisdiction from which the person fled, which offense,
if committed or attempted in this state, would have been punishable
as one or more of the offenses described in subdivision (c) of
Section 290, is guilty of a misdemeanor.
(c) No person shall be charged and prosecuted for an offense under
this section unless the prosecutor has requested the other
jurisdiction to extradite the person and the other jurisdiction has
refused to do so.
(d) Any person who is convicted of any felony sex offense
described in subdivision (c) of Section 290, that is committed after
fleeing to this state under the circumstances described in
subdivision (a) or (b) of this section, shall, in addition and
consecutive to the punishment for that conviction, receive an
additional term of two years' imprisonment.
289.6. (a) (1) An employee or officer of a public entity health
facility, or an employee, officer, or agent of a private person or
entity that provides a health facility or staff for a health facility
under contract with a public entity, who engages in sexual activity
with a consenting adult who is confined in a health facility is
guilty of a public offense. As used in this paragraph, "health
facility" means a health facility as defined in subdivisions (b),
(e), (g), (h), and (j), and subparagraph (C) of paragraph (2) of
subdivision (i) of Section 1250 of the Health and Safety Code, in
which the victim has been confined involuntarily.
(2) An employee or officer of a public entity detention facility,
or an employee, officer, or agent of a private person or entity that
provides a detention facility or staff for a detention facility, or
person or agent of a public or private entity under contract with a
detention facility, or a volunteer of a private or public entity
detention facility, who engages in sexual activity with a consenting
adult who is confined in a detention facility, is guilty of a public
offense.
(3) An employee with a department, board, or authority under the
Youth and Adult Correctional Agency or a facility under contract with
a department, board, or authority under the Youth and Adult
Correctional Agency, 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 guilty of a
public offense.
(b) As used in this section, the term "public entity" means the
state, federal government, a city, a county, a city and county, a
joint county jail district, or any entity created as a result of a
joint powers agreement between two or more public entities.
(c) As used in this section, the term "detention facility" means:
(1) A prison, jail, camp, or other correctional facility used for
the confinement of adults or both adults and minors.
(2) A building or facility used for the confinement of adults or
adults and minors pursuant to a contract with a public entity.
(3) A room that is used for holding persons for interviews,
interrogations, or investigations and that is separate from a jail or
located in the administrative area of a law enforcement facility.
(4) A vehicle used to transport confined persons during their
period of confinement.
(5) A court holding facility located within or adjacent to a court
building that is used for the confinement of persons for the purpose
of court appearances.
(d) As used in this section, "sexual activity" means:
(1) Sexual intercourse.
(2) Sodomy, as defined in subdivision (a) of Section 286.
(3) Oral copulation, as defined in subdivision (a) of Section
288a.
(4) Sexual penetration, as defined in subdivision (k) of Section
289.
(5) The rubbing or touching of the 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.
(e) Consent by a confined person or parolee to sexual activity
proscribed by this section is not a defense to a criminal prosecution
for violation of this section.
(f) This section does not apply to sexual activity between
consenting adults that occurs during an 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, to physical contact or penetration made
pursuant to a lawful search, or bona fide medical examinations or
treatments, including clinical treatments.
(g) Any violation of paragraph (1) of subdivision (a), or a
violation of paragraph (2) or (3) of subdivision (a) as described in
paragraph (5) of subdivision (d), is a misdemeanor.
(h) Any violation of paragraph (2) or (3) of subdivision (a), as
described in paragraph (1), (2), (3), or (4) of subdivision (d),
shall be punished by imprisonment in a county jail not exceeding one
year, or in the state prison, or by a fine of not more than ten
thousand dollars ($10,000) or by both that fine and imprisonment.
(i) Any person previously convicted of a violation of this section
shall, upon a subsequent violation, be guilty of a felony.
(j) Anyone who is convicted of a felony violation of this section
who is employed by a department, board, or authority within the Youth
and Adult Correctional Agency shall be terminated in accordance with
the State Civil Service Act (Part 2 (commencing with Section 18500)
of Title 2 of Division 5 of the Government Code). Anyone who has been
convicted of a felony violation of this section shall not be
eligible to be hired or reinstated by a department, board, or
authority within the Youth and Adult Correctional Agency.
