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Penal Code § 286 | Sodomy in California

Sodomy is a criminal offense under the Cal. Penal Code (PC) §286 when committed by an adult against a child or when committed by employing force, threat or intimidation. Sodomy as contemplated in PC §286, by legal definition, is sexual contact between one person's penis and the anus of another. Commission of this offense is considered to be grave, as such, penalties imposed upon conviction can lead to years of imprisonment in state prison.

In order to counter the charges, a skilled lawyer may raise a number of legal defenses challenging the charge. The more common defenses include the following:

  1. The defendant was led to a reasonable belief that the “victim” was an adult;
  2. The “victim” made false claims; or
  3. The complainant actually consented to the act.

Sodomy is a wobbler offense, which means that it can be charged as a misdemeanor or a felony, depending on the facts of the case and subject to the discretion of the prosecuting attorney. If convicted of a misdemeanor, the defendant will be made to serve his sentence in county jail for a period of up to one year. On the other hand, if convicted of a felony charge, the defendant could face imprisonment at the state prison.

Sodomy Explained

PC §286 is the statute that makes it a crime for sodomy to be committed by adults in certain situations. To be more specific, sodomy is a crime in the following situations:

  1. Committed against a child [PC §286(b)(1)] engaging in the act of sodomy with an individual who is under 18 years old;
  2. Committed by an adult over 21 years old while the victim is under 16 years old [PC §286(b)(2)];
  3. Committed against a child under 14 years old and the adult defendant is over ten years old [PC §286(c)(1)];
  4. Committed against the victim’s will while employing force, violence, duress, menace, or fear [PC §286(c)(2)(A)];
  5. Committed against a child under 14 years old and employing force, violence, duress, menace, or fear [PC §286(c)(2)(B)];
  6. Committing sodomy by means of threatening future retaliation [Penal Code §286(c)(3)];
  7. Acting in concert with another and employing force or fear in committing sodomy [PC §286(d)(1)]; or
  8. Committed against a person unable to give consent [PC §286(f)].

Legal Defenses against Sodomy Charges

There are three common defenses against sodomy charges, which are as follows:

  1. The defendant was led to a reasonable belief that the “victim” was an adult

It could be possible that the defendant, taking the circumstances into consideration, was led to a reasonable belief that he was mistaken in terms of the victim’s age. The victim himself/herself may have made false representations with regard to his/her age.

  1. The “victim” made false claims

There is sometimes inadequate proof because the purported victim made up the entire story or lied about not consenting to the action. In these situations, the prosecution frequently has little or no evidence to depend on. This is most especially true when the victim has an ill-motive of revenge or some other cause against the defendant

  1. The complainant actually consented to the act

One of the means of committing the crime of sodomy is when it is done against the will of the victim. As such, proving that the victim consented may be used as a defense to refute the allegations.


Certain sodomy charges are wobblers, which are crimes that can be prosecuted as misdemeanors or felonies depending on the facts of the case and any other circumstances, such as prior criminal history.

Sodomy can be charged as a misdemeanor if committed against a minor or committed against a jail inmate. If convicted of a misdemeanor offense, potential penalties could be serving up to one year in county jail.

All other manners of committing sodomy not mentioned above are chargeable as a felony. If convicted of a felony offense, the defendant can be punished with imprisonment in state prison for up to three years.

Whether charged as a misdemeanor or a felony, conviction will necessarily result in mandatory registration as a sex offender in California.

Civil Suit in Sodomy Cases

Even if the defendant is eventually exonerated and found not guilty of sodomy accusation charges, the victim can still restore to firing a civil action to collect compensatory damages for things like essential medical expenditures, therapy, pain and suffering, mental anguish, and lost job income.

In circumstances where criminal charges were never filed, a civil action may be commenced. Civil lawsuits are regarded as distinct from criminal charges and may proceed independently of them. If a civil case is brought for a claim of sodomy, a criminal conviction can be used to show civil culpability. Each instance is unique in its own way.

Related Crimes

Some offenses listed under the Penal Code may be similar or related to the crime of sodomy. These are some of the crimes related to PC §286:

  1. Rape – PC §261,
  2. Lewd acts with a minor child – PC §288(i), and
  3. Sexual battery – PC §243.4

a.) Penal Code §261, Rape

Rape, according to PC § 261, is a felony committed when someone employs force, threats, or deception to engage in nonconsensual sexual intercourse with another person. For the purposes of this law, "sexual intercourse" refers to any sexual penetration of the vagina or genitalia by the penis, no matter how slight.

Rape, unlike sodomy, is always charged as a felony. This offense is punished by up to eight years in state prison. An offender may face a harsher jail sentence if the victim was seriously injured during the commission of the felony.

b.) Lewd acts with a minor child – PC §288(i)

PC §288(i) defines and punishes the act of committing lewd acts coupled with inflicting bodily injury to the victim in the course thereof. Just like sodomy, PC §288(i) charges can be countered by raising false accusations as a defense.

c.) Sexual battery – PC §243.4

The California offense of sexual battery (commonly known as “sexual assault”) is defined in PC §243.4 as touching the intimate areas of another person without his/her consent for the purposes of sexual enjoyment, sexual arousal, or sexual abuse.

Just like sodomy cases, a sexual battery offense is also a wobbler allowing the prosecutor to charge it as a misdemeanor or a felony.

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