People v. Wilcox

Opinion

GILBERT, J.

Glen Roger Wilcox appeals from the judgment entered following his conviction by the court of assault with intent to commit oral copulation (Pen. Code, § 220), assault with intent to commit rape (Pen. Code, § 220) and rape with a foreign object (Pen. Code, § 289). We affirm his conviction because a finger is a “foreign object” within the meaning of Penal Code section 289. [. . .

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Facts

On November 27, 1983, at approximately 1 p.m., Valerie W. was alone in her home when Wilcox, her roommate’s ex-husband, arrived. After some conversation, Wilcox partially removed Ms. W.’s clothing despite her resistance. He inserted his finger in her vagina and attempted further sexual assaults. An interruption by someone knocking at the door enabled Ms. W. to take refuge in the bathroom where she held Wilcox at bay with a curling iron.

[717]

Wilcox admitted placing his finger in Ms. W.’s vagina, but claimed Ms. W. at first consented, but then changed her mind after the interruption. Wilcox presented testimony from a clinical psychologist, who is a sex therapist, that almost every area of the body is considered a sexual organ, particularly the fingers. Therefore, Wilcox claimed that a finger is not a “foreign object” within the meaning of Penal Code section 289.

Discussion

We reject Wilcox’ contention that a finger is not a foreign object within the meaning of Penal Code section 289. Section 289 as amended in 1982 prohibits forcible penetration of the genital or anal openings by a foreign object including “any part of the body, except a sexual organ.” (Pen. Code, § 289, subd. (c).)

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As the People point out, if any external part of the body may be a sexual organ, then the exclusion of sexual organs in subdivision (c) would be meaningless and the amended section would mean the same thing as the former version of section 289.

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