Last Updated on September 19, 2024
Sodomy is essentially a fancy name for anal sex. While consensual sodomy is legal, when one party does not consent, it is a crime under California Penal Code 286 (PC). The consequences for forceful sodomy or the sodomy of a child are similar to those for forceful oral copulation, rape with a foreign object, and rape. If you have been accused of sodomy, call an experienced sex crimes lawyer as soon as possible.
Is Sodomy Illegal in California? What About the Rest of the US?
While laws throughout the US criminalized sodomy for over 100 years, California legalized the act in 1975. Eventually, the Supreme Court prohibited any states from outlawing anal sex between consenting adults in their 2003 ruling for Lawrence Vs. Texas. Despite this, 14 states still have laws on the books against sodomy which may not currently be enforceable but could be reenacted if the Supreme Court were to reverse its decision.
Defining Illegal Sodomy
If two consenting adults have anal sex, it is legal under California law. If someone uses coercion, drugs, force, or fear to insert their penis into someone else’s anus without consent, it is considered unlawful sodomy under California law. Similarly, if someone has anal sex with an unconscious person or someone under 18, it is considered sodomy under Penal Code 286 (PC) because these individuals are legally unable to consent to sexual activity. It is also a crime to engage in sodomy while in prison or jail, even if the other party agrees.
Notably, if someone anally penetrates another person who didn’t consent using a strap-on dildo, the crime is instead charged as forcible sexual penetration with a foreign object. For illegal sodomy to have occurred, a penis must have penetrated the anus of someone who didn’t consent or was under 18. In other words, this crime is essentially the rape of an anal, rather than vaginal, orifice.
Penalties for Unlawful Sodomy Under 286 (PC)
The penalties for the crime of sodomy are essentially the same as those for rape, insertion of a foreign object, or non-consensual oral copulation. If someone is accused of doing multiple non-consensual sex acts, they could even be charged separately for each offense, and if the victim was a minor, they could also face statutory rape charges.
Most sodomy charges are felony offenses, punishable by up to 8 years in state prison and a $10,000 fine. These offenses always require mandatory registration as a sex offender. In cases involving the forced sodomy of a minor, the prison sentence will be increased to as much as 11 or 13 years, with the highest penalties reserved for cases where the victim was under 14.
The only times offenses under 286 (PC) are not automatically a felony are when a consensual act of sodomy took place between prison or jail inmates or between a minor over 14 and an individual less than 10 years older than the juvenile. In these cases, the crime is a wobbler, meaning the prosecution may choose to file it as a felony or misdemeanor. As a misdemeanor, the offense is punishable by no more than one year in county jail. In misdemeanor cases, it is up to the judge whether or not to require a person convicted under 286 (PC) to register as a sex offender.
In addition to these penalties, the victim of non-consensual sodomy can also file a civil suit, which could result in the alleged rapist needing to pay punitive damages as well as massive restitution payments that could cover the victim’s emotional suffering, physical injuries, medical bills, therapy costs, and more. If you lose your criminal case, this can be used as evidence in a civil suit, making it more likely you will lose this case as well. Even if the defendant is found not guilty in a criminal trial, though, the victim can still bring a civil lawsuit, and because the threshold of guilt in these cases is lower, they can still be held responsible civilly.
Fighting the Charges
Never try to defend yourself against these serious criminal charges without the help of a San Diego sodomy defense attorney. If you try to argue that it wasn’t sodomy because you used a finger or dildo, then you could face the same penalties for the crime of forceful insertion of a foreign object, and you will have essentially confessed to the crime. Similarly, if you claim the victim consented, but they are under 18, this will be used as evidence of your guilt.
That being said, it is possible to fight charges related to 286 (PC) and win as long as you don’t say anything that could harm your case and consult your lawyer on the right strategy for your specific circumstances. Individuals accused of consensual sodomy with a minor over 14 can often argue they believed the juvenile was an adult, but only if the average person would also make the same mistake. For example, if a 16-year-old looked like an adult and the two parties met in a college course, it would be reasonable for the other individual to believe they were over 18.
Defenses for 286 (PC) are often the same as those for other sexual assault allegations. They may include arguing that the defendant was wrongly accused, a victim of mistaken identity, or that the sex act was consensual. Many of these cases simply come down to the alleged victim’s word versus the defendant’s, and anything you say that could be considered untruthful may make you appear dishonest and untrustworthy, undermining your case.
If you have been accused of any sex crime in San Diego, including unlawful sodomy, criminal defense lawyer Peter M. Liss can help. Please call (760) 643-4050 to schedule a free initial consultation.
