Evidence that a defendant’s penis penetrated beyond a victim’s buttocks and into the perianal folds is sufficient to establish sexual penetration of the anal opening for purposes of the sodomy statute (Pen. Code, § 286, subd. (a)). Paz was convicted of a number of offenses, including forcible sodomy (Pen. Code, § 286, subd. (c)(2)(A)). One of his arguments on appeal was that the evidence was insufficient to support the sexual penetration element of sodomy. Held: Affirmed. 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.” (Pen. Code, § 286.) “Sexual penetration,” however, is not a term defined in the sodomy statute. It is only defined in section 289, dealing with object penetration: “Sexual penetration is the act of causing the penetration however slight, of the genital or anal opening of any person . . . .” (Italics added.) The court here concluded that the definition of sexual penetration in section 289 also applies to the sexual penetration element in section 286. However, the term “anal opening” does not have a plain meaning; scientific literature is in disagreement over what constitutes the “anal opening.” After analyzing the statutory scheme, the court compared the elements of sodomy to the sexual intercourse element of rape, which requires “vaginal penetration.” Courts have long held that vaginal penetration does not require penetration into the vaginal cavity; penetration of the external genital organs is sufficient. Applying the same penetration rules to the anus, the court held “that sexual penetration requires penetration of the tissues that surround and encompass the lower border of the anal canal—that is, it requires penetration past the buttocks and into the perianal area but does not require penetration beyond the perianal folds or anal margin.” There was sufficient evidence that Paz penetrated that space on his victim. Her perianal folds were injured and she testified that Paz “started having anal sex with me.”

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B265251.PDF