Cal Pen Code § 286 (2004)
§ 286. Sodomy
(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) 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.
(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) 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.
(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.