Is sexual penetration with something other than a sexual organ a specific intent crime?

California, United States of America


The following excerpt is from People v. Bodkin, G049005 (Cal. App. 2014):

Sexual penetration with something other than a sexual organ, as defined under section 288.7, subdivision (b), requires penetration "for the purpose of sexual arousal, gratification, or abuse . . . ." ( 289, sub. (k)(1).) The Attorney General argues that "Although in this instance both [section 288.7, subdivision (b), and section 288, subdivision (a)] are specific intent crimes, the intent is sufficiently different between the two offenses so that one would not necessarily commit the lesser offense when committing the greater. The intent required for sexual penetration includes, 'for the purpose of . . . . abuse.' (Cal. Penal Code, 289, subd. (k); People v. Senior (1992) 3 Cal.App.4th 765, 776.) Penal Code section 288, subdivision (a) does not include the intent to abuse. Thus, one could commit an act of penetration on a minor with intent to abuse but would not necessarily commit a lewd act on a child at the same time. Because the greater can be committed without committing the lesser, Penal Code section 288, subdivision (a) is not a lesser included offense of section 288.7, subdivision (b). Consequently, the trial court had no obligation to provide the instruction."

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