California penal code 286 defines sodomy as the sexual contact between the penis of one person and the anus of another person.
Prosecutors and judges formerly used these laws to persecute gay couples for consensual sex. Legislatures had to revise their laws when the U.S. Supreme Court found that these types of prosecutions had unconstitutionally discriminated against gay people
California’s current law avoids criminalizing homosexuality by focusing on sodomy in four contexts:
Prosecutors may stack a sodomy charge if an assault or rape allegedly included anal penetration. This gives prosecutors leverage in plea negotiations, since the additional charge could add three years or more to the potential sentence.
Prosecutors could allege sodomy to increase the potential sentence in a child sex abuse case. Prosecutors like to show the public that they take a hard line against child abuse.
Sentences under California’s law vary widely. California’s statutes outlaw anal sex in many contexts that have a low risk of victimization. As a result, some lower-risk situations carry lower sentences than others. Some of the sentences under California’s law include:
The law imposes the shortest sentences on acts that would otherwise be deemed to be consensual if the parties could legally consent. The use of force or threats increases the sentences substantially.
Lack of consent forms a common thread that runs through California’s law. For a conviction in California, the victim must either refuse consent or be unable to consent. This is similar to the ways that sexual assault and battery charges (PC 243.4) rely on lack of consent as a key element.
The law presumes that victims under the age of 18 cannot validly consent to sodomy. If someone under the age of 18 says or does something to consent to sodomy, that consent is invalid.
The law assumes that people under the age of 18 do not have the maturity to consent to sexual acts. The same theory gives rise to statutory rape charges (PC 261.5).
Prosecutors can charge someone with sodomy with a minor under three circumstances, each of which has a different penalty:
As the age of the alleged victim decreases, the punishment increases.
California law bars sexual contact with a victim incapable of consent. Some situations criminalized under California law include sodomy with someone who is:
In these situations, consent was not obtained because the victim either did not understand the sexual act or did not know the sexual act occurred.
Forcible Sodomy
Force or threats of force used to commit sodomy will result in criminal charges. Three situations where prosecutors can bring charges under California’s law include:
As with rape charges (PC 261), force or threats can negate consent because consent given under duress is invalid.
California’s law outlaws all anal sex in jails and prisons. This provision applies regardless of the inmates’ ages or whether the sex was consensual. Consequently, this provision comes close to criminalizing homosexuality.
To understand the possible defenses, you should understand how charges can arise. In some cases, an alleged victim may have a motivation to falsely accuse you of unwanted anal penetration. Whether the motivation comes from anger, jealousy, or attempted extortion, you will assert that the assault never occurred.
In other cases, the alleged victim might suffer from regret or shame after a consensual act. In these cases, you will need to discredit the prosecution’s assertion that the alleged victim did not consent or that you used force or threats of force.
In cases involving intoxication, your defense may hinge on mistaken identity or false memory about what happened.
If the alleged victim is a minor, you may need to cast doubt on the alleged victim’s memory of what happened and who was involved. If the act did occur, you may be able to defend yourself based on a mistake of fact facilitated by the alleged victim. For example, if the victim showed you a fake ID, you might legitimately have believed the victim was not a minor.
Charges of unwanted sexual contact like sodomy can turn your world upside down. A conviction can land you in prison and put you on California’s sex offender registry for life.
For many people accused of sex crimes in California, a Criminal Defense Attorney is the only person who can discuss the charges openly, frankly, and without judgment.
Consult a licensed criminal attorney to determine what this means for you.
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