Oral Copulation Defense Lawyer

What is Oral Copulation?

California Penal Code Section 288a (formerly known as Penal Code §287) covers the varying crimes of oral copulation. It is important to note that under this statute, it makes it a criminal offense to have oral sex with a minor (a person under the age of 18), even if it was consensual. In some cases, even if both parties are minors, one of them can also be held liable under this statute under particular circumstances. Due to the varying crimes of oral copulation covered under this statute, it is important to distinguish between each one.

What Constitutes the Crime of Oral Copulation?

Oral copulation is defined as any contact, no matter how slight, between the mouth of one person and the sexual organ or anus of another person[1] and penetration is not required.

There are different types of crimes of “oral copulation” covered under this statute. The difference lies in the age of the victim and the defendant, whether force or fear or fraud was used in the commission of the crime, and the status of the victim when the crime was committed (intoxicated, unconscious, etc.), among others.

The following are the specific crimes covered under this statute:

A. Oral Copulation with a Minor[2]

B. Oral Copulation with a Minor and Defendant is 21 Years Old or Older[3]

C. Oral Copulation with a Person Under 14 Years Old[4]

D. Oral Copulation by Force, Fear, or Threats[5]

E. Oral Copulation in Concert[6]

F. Oral Copulation While in Custody[7]

G. Oral Copulation of an Unconscious Person[8]

H. Oral Copulation of a Disabled Person[9]

I. Oral Copulation of a Disabled Person in a Mental Hospital[10]

J. Oral Copulation of an Intoxicated Person[11]

K. Oral Copulation by Fraud[12]

A. Oral copulation with a Minor (Person under the age of 18) – Penal Code §288(b)(1)

To be guilty under this statute, the prosecution needs to prove that:

- The defendant participated in an act of oral copulation with another person

- The other person was under the age of 18

As mentioned earlier, consent from a minor is not a defense in this case. However, it is a defense is if the defendant believed in good faith or reasonably and believed that the other person was 18 years or over.[13]

Oral copulation is defined as any contact, no matter how slight, between the mouth of one person and the sexual organ or anus of another person.[14]

A minor under age 14 may be adjudged responsible for violating Penal Code section 288a(b)(1) upon clear proof of the minor’s knowledge of wrongfulness. Meaning the defendant minor can distinguish between “right” or “wrong”. Such in the case of a minor aged 13 who made a boy aged 9, to give him “head.”[15] The minor defendant, in this case, will be prosecuted in juvenile court.

B. Oral Copulation with a Minor and Defendant is 21 Years old or Older – Penal Code §288a (b)(2)

To be guilty under this statute, the prosecution needs to prove that:

- The defendant participated in an act of oral copulation with another person

- The defendant was at least 21 years old at the time

- The other person was under the age of 16 at the time

Similarly, consent from the person under the age of 16 is not a defense in this case. However, it is a defense is if the defendant believed in good faith or reasonably and believed that the other person was 18 years old or older.

C. Oral Copulation with a Person Under 14 Years Old – Penal Code §288a (c)(1)

To be guilty under this statute, the prosecution needs to prove that:

- The defendant participated in an act of oral copulation with another person

- At the time of the act, the other person was under the age of 14 and was at least 10 years younger than the defendant

Consent from the person under the age of 14 is not a defense in this case. And is also not a defense even if the defendant believed that the other person is someone over the age of 14.[16]

D. Oral Copulation by Force, Fear, or Threats – Penal Code §288a (c)(2)

To be guilty under this statute, the prosecution needs to prove that:

- The defendant committed an act of oral copulation with someone else

- The other person did not consent to the act

- The defendant accomplished the act by force or fear

OR

- future threats of bodily harm

OR

- the threat of official action

Force or fear includes force, violence, duress, menace, or fear of immediate and unlawful bodily injury to someone. An act is accomplished by force if a person uses enough physical force to overcome the other person’s will.[17] Duress means a direct or implied threat of force, violence, danger, hardship, or retribution that causes a reasonable person to do or submit to something that he or she would not otherwise do or submit to.[18] Retribution is a form of payback or revenge. Menace means a threat, statement, or act showing an intent to injure someone.[19]

An act is accomplished by fear if the other person is actually and reasonably afraid or he/she is actually but unreasonably afraid and the defendant knows of his/her fear and takes advantage of it.[20]

Future threats of bodily harm mean threatening to retaliate against someone when there was a reasonable possibility that the threats would be carried out. A threat to retaliate is a threat to kidnap, unlawfully restrain or confine, or inflict extreme pain, serious bodily injury, or death.

The threat of official action means threatening to use the authority of a public office to incarcerate, arrest, or deport someone. A public official is a person employed by a government agency that has the authority to incarcerate, arrest, or deport. The other person must have reasonably believed that the defendant was a public official even if the defendant was not.

Consent means that a person can act freely and voluntarily and know the nature of the act. A relationship such as marriage, dating, had been dating, had been married does not necessarily mean that there is consent between two people. Also, even if the other person requested/suggested/communicated that the defendant use a condom or other birth control device is not enough by itself to constitute consent.

In this case, it is a defense if the defendant actually and reasonably believed that the other person consented to the act.

E. Oral Copulation in Concert - Penal Code §288 (d)

To be guilty under this statute, the prosecution needs to prove that:

- The defendant personally committed oral copulation and voluntarily acted with someone else who aided and abetted its commission

OR

- The defendant voluntarily aided and abetted someone else who personally committed oral copulation

It is not necessary that the defendants in this case prearranged plan or scheme to commit oral copulation.

F. Oral Copulation While in Custody – Penal Code §288a (e)

To be guilty under this statute, the prosecution needs to prove that:

- The defendant participated in an act of oral copulation with someone else

- At the time of the act, the defendant was confined in a state prison or a local detention facility

A state prison is any prison or institution maintained by the Department of Corrections and Rehabilitation. A local detention facility includes any city, county, or regional jail or other facility used to confine adults or both adults and minors.

G. Oral Copulation of an Unconscious Person – Penal Code §288a (f)

To be guilty under this statute, the prosecution needs to prove that:

- The defendant committed an act of oral copulation with another person

- The other person was unable to resist because (he/she) was unconscious of the nature of the act

- AND

- The defendant knew that the other person was unable to resist because (he/she) was unconscious of the nature of the act

A person is unconscious of the nature of the act if he or she is unconscious or asleep or not aware that the act is occurring/ or not aware of the essential characteristics of the act because the perpetrator tricked, lied to, or concealed information from the person/ [or] not aware of the essential characteristics of the act because the perpetrator fraudulently represented that the oral copulation served a professional purpose when it served no professional purpose.[21]

It is important to note that a person may be charged with both oral copulation with an unconscious person and oral copulation with an intoxicated person (Penal Code §288a (i)) under applicable circumstances because of unconsciousness and intoxication are distinct things under California law. (please see - J. Oral Copulation of an Intoxicated Person)

H. Oral Copulation of a Disabled Person – Penal Code §288a (g)

To be guilty under this statute, the prosecution needs to prove that:

- The defendant committed an act of oral copulation with someone else

- The other person had a mental disorder/developmental or physical disability that prevented him/her from legally consenting

AND

- The defendant knew or reasonably should have known that the other person had a mental disorder/developmental or physical disability that prevented him/her from legally consenting

A person is prevented from legally consenting if he or she is unable to understand the act, its nature, and possible consequences.[22]

I. Oral Copulation of a Disabled Person in a Mental Hospital – Penal Code §288a (h)

To be guilty under this statute, the prosecution needs to prove that:

- The defendant committed an act of oral copulation with someone else

- The other person had a mental disorder/developmental or physical disability that prevented (him/her) from legally consenting

- The defendant knew or reasonably should have known that the other person had a mental disorder/developmental or physical disability that prevented him/her from legally consenting

AND

- At the time of the act, both people were confined in a state hospital or other mental health facility

A state hospital or other mental health facility includes a state hospital for the care and treatment of the mentally disordered or any other public or private facility approved by a county mental health director for the care and treatment of the mentally disordered.[23]

J. Oral Copulation of an Intoxicated Person – Penal Code §288a (i)

To be guilty under this statute, the prosecution needs to prove that:

- The defendant committed an act of oral copulation with another person

- An intoxicating/anesthetic/controlled substance prevented the other person from resisting

AND

- The defendant knew or reasonably should have known that the effect of an intoxicating/anesthetic/controlled substance prevented the other person from resisting

A person is prevented from resisting if he or she is so intoxicated that he or she cannot give legal consent. To give legal consent, a person must be able to exercise reasonable judgment. In other words, the person must be able to understand and weigh the physical nature of the act, its moral character, and probable consequences. Legal consent is consent given freely and voluntarily by someone who knows the nature of the act involved.

The defendant is not guilty if they believed in good faith that the other person could reasonably give consent, even if that belief was wrong.[24]

K. Oral Copulation by Fraud – Penal Code §288a (j)

To be guilty under this statute, the prosecution needs to prove that:

- The defendant committed an act of oral copulation with someone else

- The other person submitted to the oral copulation because (he/she) believed the defendant was someone (he/she) knew, other than the defendant

AND

- The defendant tricked, lied, used an artifice or pretense, or concealed information, intending to make the other person believe that the defendant was someone the other person knew while intending to hide the defendant’s own identity

Simply put, the defendant lied about their identity or used some trick to hide their identity to be able to have oral sex with another person. For example, the defendant used the darkness of a room and pretended to be someone else so they could have oral sex with a person who thought they were someone else. Without the trickery used by the defendant, the other person would not have acted the way they did.

Penalties

The penalties for PC 288a depend largely on the age difference between the defendant and the victim when the oral sex happened when a minor is involved.

If the victim is 16 years old or older oral copulation is a wobbler. Meaning it can either be a misdemeanor or a felony. This also applies if the defendant is 21 years old or younger.

The sentence for a misdemeanor is 1 year in county jail. The sentence for a felony is 16 months, 2 years, or 3 years in the California state prison.

The penalty is different if the victim is under 16 and the defendant is over 21 when the oral sex happened. It is an automatic felony and will be punished with a sentence of 16 months, 2 years, or 3 years in the California state prison.

If the victim is under 14 years old and the defendant is more than 10 years older than the victim when the oral copulation happened, then the prison sentence becomes 3, 6, or 8 years in the California state prison. The same penalty applies if oral copulation is done by force or fear.

The penalty is harsher when the crime is oral copulation in concert with another person. This is punishable by imprisonment in the state prison for 5, 7, or 9 years. If the victim is above 14 but force or fear was used to commit oral copulation in concert with another person the penalty is imprisonment in the state prison for 8, 10, or 12 years. If the victim is under 14 and force or fear was used to commit the crime, it is punishable by imprisonment in the state prison for 10, 12, or 14 years.

Oral copulation of a disabled person is punishable by incarceration in the state prison, for 3, 6, or 8 years. If the crime was committed while both parties were committed to a mental institution, the sentence is imprisonment in either state prison or county jail for not more than 1 year.

If the victim was intoxicated or unconscious, it shall be punished by imprisonment in the state prison for a period of 3, 6, or 8 years.

If oral copulation was committed by fraud, it shall be punished by imprisonment in the state prison for a period of 3, 6, or 8 years.

If oral copulation was committed by threatening to use the authority of a public official, the penalty shall be imprisonment in the state prison for a period of 3, 6, or 8 years.

It is very important to note that conviction of any of the crimes covered under California Penal Code §288a will require sex offender registration. Under the amended rules on sex offender registration, most crimes covered under Penal Code §288a shall be a Tier II registrable offense. Meaning the sex offender will need to register for a minimum of 20 years.

However, there are specific crimes that will require Tier III registration, meaning lifetime registration. To be specific, these are:

- Oral Copulation by Force, Fear, or Threats – Penal Code §288a (c)(2)

- Oral Copulation in Concert - Penal Code §288 (d)

- Oral Copulation of an Unconscious Person – Penal Code §288a (f)

- Oral Copulation of an Intoxicated Person – Penal Code §288a (i)

Possible Defenses

The most common defense is “good faith” meaning the defendant believed that under applicable circumstances, the minor was actually of legal age (18 or older), or the other person could legally give consent. However, “good faith” is not an acceptable defense under particular crimes under Penal Code §288a.

Good faith as to the age of the victim:

- Oral Copulation with a Minor - Penal Code §288(b)(1)

- Oral copulation with a Minor and Defendant is 21 Years old or Older – Penal Code §288a (b)(2)

Good faith as to consent given by victim:

- Oral Copulation by Force, Fear, or Threats – Penal Code §288a (c)(2) (NOTE: the victim must not be under the age of 14 for this defense to be applicable)

- Oral Copulation of an Intoxicated Person – Penal Code §288a (i)

There other possible defenses depending on the circumstances of each case such as false accusations, mistakes as to the defendant’s identity, the statute of limitations, insanity, etc.

Call (626) 827-7222 for Experienced & Knowledgeable Legal Defense

Due to the seriousness of the potential penalties you face for oral copulation, having a skilled criminal defense attorney on your side can make a significant difference between conviction and freedom. At Second Chances Law Group, APC, oursex crime defense lawyer can investigate your arrest, gather and assess evidence, and determine if the police violated your constitutional rights or if there are any weaknesses in the accuser’s or prosecutor’s argument. Our goal is to either have your charges or penalties reduced to avoid jail or prison time or have your entire case dismissed. We provide all our clients with effective and personalized legal solutions.

Contact us today and schedule a free consultation with our legal team.

[1] California Penal Code §288a (a)

[2] California Penal Code §288a (b)(1)

[3] California Penal Code §288a (b)(2)

[4] California Penal Code §288a (c)(1)

[5] California Penal Code §288a (c)(2) & (3), (k)

[6] California Penal Code §288a (d)

[7] California Penal Code §288a (e)

[8] California Penal Code §288a (f)

[9] California Penal Code §288a (g)

[10] California Penal Code §288a (h)

[11] California Penal Code §288a (i)

[12] California Penal Code §288a (j)

[13] People v. Hernandez (1964) 61 Cal.2d 529, 535–536 [39 Cal.Rptr. 361, 393 P.2d 673]

[14] California Penal Code §288a (a)

[15] In re Paul C. (1990) 221 Cal.App.3d 43, 49 [270 Cal.Rptr. 369]

[16] People v. Olsen (1984) 36 Cal.3d 638, 649 [205 Cal.Rptr. 492, 685 P.2d 52]

[17] People v. Griffın (2004) 33 Cal.4th 1015, 1023–1024 [16 Cal.Rptr.3d 891, 94 P.3d 1089]

[18] People v. Leal (2004) 33 Cal.4th 999, 1004–1010 [16 Cal.Rptr.3d 869, 94 P.3d 1071];

[19] California Penal Code, § 261(c)

[20] People v. Reyes (1984) 153 Cal.App.3d 803, 810 [200 Cal.Rptr. 651]

[21] Judicial Council of California Criminal Jury Instructions 2019, Section 1018

[22] People v. Miranda (2011) 199 Cal.App.4th 1403, 1419, fn. 13 [132 Cal.Rptr.3d 315]

[23] California Penal Code §288a (h)

[24] People v. Giardino (2000) 82 Cal.App.4th 454, 472 [98 Cal.Rptr.2d 315]