Cal. Penal Code §287 | Oral Copulation with a Minor
Oral copulation with a child (a person under the age of 18) is a crime defined and penalized under Cal. Penal Code (PC) §287. The offense is committed by having any contact between one person's mouth and another person's penis, vagina, or anus.
PC §287 also pertains to oral copulation with any person when done by employing force, violence, duress, menace, or fear. This type of felony is punishable by up to eight years in state prison.
The crime of oral copulation with a child is best understood in light of California's statutory rape statutes, which make it a crime to have sexual intercourse with a minor, even when the minor consented to the act [PC §287; See also PC §261.5]
It is also worth nothing that certain circumstances (i.e., when a minor is suffering from a mental disability or is very intoxicated) of committing the crime of oral copulation can be charged as oral copulation by force or fear; an offense having more serious penalties [Oral copulation by force or fear]
Penalties imposed after having been convicted of violation of PC §187 for oral copulation largely depend on two factors: age of the victim and age of the defendant at the time when the oral copulation was committed.
PC §287 is a wobbler offense if the victim is 16 years of age or older or in cases when the defendant is actually 21 years old or younger. Since it is a wobbler, it can be charged as a misdemeanor or a felony. A conviction for a misdemeanor charge carries with it a penalty of one year in county jail. On the other hand, a felony conviction will have harsher penalties with prison sentence ranging from 16 months, 2 years, or 3 years to be served in the state prison. [Penal Code 287 PC]
If the victim is younger than 16 years old and the defendant is above 21 years old at the time of the commission of the acts complained of, oral copulation will always be pursued as a felony. Being a felony offense, penalties imposed range from 16 months, 2 years, or 3 years of imprisonment [PC §287 PC]
Lastly, PC §287 says that in the event that the victim is younger than 14 years old while the defendant was more than 10 years older than the minor at the time of the commission of the crime, the sentence imposed could be as long as 3 years, 6 years, or 8 years [PC §287]
In addition to imprisonment, oral copulation with a minor also results in mandatory sex offender registration. The only exception to this requirement is when, at the judge’s discretion, the defendant will not be required if he is convicted of violation of PC §287, par. b, i.e., when the minor victim is 14 years old while the defendant only has 10 years or less gap with the victim. It is important to comply with registration requirement year after year, otherwise, failure to do so can lead to misdemeanor or felony charges, on top of the underlying PC §287 conviction [PC §290.018]
Avoiding conviction for PC §287, Oral Copulation with a Minor
Challenging oral copulation with a minor may seem like an impossible task, but with the help of a skilled attorney, avoiding conviction or lessening its harsh consequences is not at all
impossible. By practice, the more common legal defenses raised to refute PC §287 allegations are as follows:
- The defendant was led to believe, in good faith, that the child was actually 18 years old; and
- False allegations were fabricated by the victim.
Oral copulation with a Minor Explained
By law, oral copulation with a minor is defined as follows:
- The defendant participated in an act of “oral copulation” with another person; and
- The other person was under the age of eighteen (18) when the oral copulation occurred [Judicial Council of California Criminal Jury Instructions (“CALCRIM”) 1082]
The foregoing enumeration is referred to as “elements of the crime,” which should be proven by the prosecutor beyond a reasonable doubt, in order to secure a conviction.
Legal Terms essential to PC 287 Explained
a.) 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. As per Supreme Court decisions, it is not that there be penetration nor ejaculation/orgasm to charge a person for PC §287 offense [CALCRIM 1082].
Sexual organ, as referred to in this definition, includes both the penis and the scrotum [See CALCRIM 1015].
b.) “Person under 18”
A person is considered under 18 years old until the first minute of their 18th birthday according to California Penal Code [CALCRIM 1082].
Sex Offender Registration in PC §287 Conviction
As a general rule, a person convicted of PC §287 will have to register as a sex offender. However, in certain cases, sex offender registration may be dispensed with. This is only true when, at the judge’s discretion, sex offender registration is not required upon the defendant being convicted of PC §287(b) in the event that the minor victim was at least 14 years old at the time of the commission of the crime and the age gap between the offender and the victim is 10 years or less [PC §290]
Period of Sex Offender Registration
Under the current Sex Offender registration statute, the period of registration will have to depend on the Tier classification to which the defendant belongs to. Tier Designation is divided into three categories, namely: Tier I, Tier II, and Tier III [PC §290].
Offenders classified under Tier I and Tier II will now have to register for a minimum of only ten (10) or twenty (20) years; after which the registrant becomes eligible to apply for termination of their duty to register as sex offenders. Tier I classification is reserved for those who were convicted of oral copulation as a misdemeanor offense. Tier II offenders on the other hand are considered mid-level offenders, who have been convicted of oral copulation with a minor under 14 years old, where the offender was found to be more than 10 years older than the minor victim [Penal Code 290].
Lifetime registration as a Tier III offender is also possible in oral copulation conviction. This tier classification is for those who have committed oral copulation by means of force or duress; or in cases when the defendant acted in concert with another perpetrator. Tier III can also be had when oral copulation was committed against a victim who was intoxicated or unconscious at the time of the commission of the offense. [Penal Code section 287; See also Penal Code section 290]
Complying with the Sex Offender Registration Requirement
PC §290 provides that a person who is mandated to register as sex a offender must comply with the requirement every year, within five working days from his/her birthday and/or every time he/she moves to a new place to reside. Registration must be done before the police department or sheriff’s office of the city where he/she resides [PC §290].
Non-compliance with the sex offender registration requirement can lead to a misdemeanor or felony conviction; which includes incarceration as a potential punishment. In addition, a conviction for violation of this requirement will also toll the minimum period of registration. In other words, the additional periods will be imposed upon the minimum period of registration in determining the defendant’s eligibility to petition for termination of the duty to register as a sex offender. Failure to register can be charged as a misdemeanor or a felony, depending on the underlying offense for which the defendant was convicted. If convicted of a misdemeanor, failure to register will be charged as a misdemeanor. On the other hand, if previously convicted of a felony offense, it necessarily follows that the failure to register will be charged as a felony offense [PC §290.018].
Motion to Expunge PC §287 Conviction
Unlike some sex crimes, a conviction for oral copulation can be expunged by filing the appropriate motion, with the assistance of a competent counsel. This is true for both felony and misdemeanor convictions for PC §287. The expungement of oral copulation conviction, however, has to comply with certain requirements, namely:
1.) The defendant did not serve his sentence at the state prison for his PC §287 conviction;
2.) The defendant was granted probation and successfully completed the terms thereof;
3.) The defendant, at the time of applying for expungement, is not currently charged with, on probation for, or serving a sentence for a criminal offense [PC §1203.4].
Not all cases of oral copulation conviction are allowed to apply for expungement. Persons convicted of oral copulation with a minor under the age of 14 who is more than 10 years younger cannot apply for this relief, being explicitly precluded by statute on expungement [PC §290.007]
It is important to note, however, that while the grant of expungement can bring a number of advantages to the defendant, it DOES NOT exonerate the defendant from his/ her responsibility to register as a sex offender. In other words, even when expungement is granted, the defendant will still continue to register as a sex offender [CALCRIM 1082].
Challenging PC §287 Conviction
Given that the consequences of PC §287 conviction include imprisonment and sex offender registration, it is always best for the defendant to fight the charge during the trial stage. As such, the defendant must come up with the most appropriate legal defenses applicable to the unique set of facts of his case. With that, it is important that the defendant be assisted by a skilled attorney at the earliest opportunity. In practice, these are the following common defenses for PC §287 allegations:
A.) Reasonable Belief that the accuser was NOT a minor
If the defendant reasonably believed that the minor was over 18 years old, he/she cannot be charged with oral copulation with a minor. However, this defense will not apply if the minor is under 14 years old and more than 10 years younger than the defendant. This defense is a specific type of mistake of fact defense.
To support this defense against PC §287 charges, evidence such as the victim's statements claiming to be over 18 years of age, his/her appearance, clothes, makeup, and the location where the defendant met him/her (i.e., finding him/her in an ID-required bar) can be helpful. This is especially true when the accuser actively misrepresented herself to be of age.
B.) False Accusations
It's not uncommon for people to be falsely accused of oral copulation with a minor, especially when the accuser has had a close relationship with the defendant that ended badly due to jealousy or a failed romantic relationship.
Statute of Limitation for oral copulation with a minor
The statute of limitation sets forth the period with which the criminal action can be brought and pursued by the victim. The lapse of this period set forth under the law shall bar the accuser from instituting his/her action against the defendant. In California jurisdiction, action for oral copulation with a minor expires when the victim turns 40 years old. This period may be extended for a year if the victim files a police report at the time when all other statutes of limitations have already ended and the accusations are supported by independent pieces of evidence. A one-year extension can also be had when the prosecutor determines the defendant’s identity thru DNA testing. In all other cases, action is forever barred after the victim turns 40 years old [PC §287]
Related Crimes
Some of the most commonly charged offenses similar to PC §287 oral copulation with a minor include:
- PC §287 on oral copulation by force or fear, which involves engaging in oral sex with another person using force, violence, duress, or threats, or when the other person is intoxicated, unconscious, or unable to legally consent due to mental or physical disabilities. If the defendant engages in non-consensual oral sex with a minor or in consensual oral sex with a minor who is intoxicated, unconscious, or mentally or developmentally disabled, he/she may be charged with "oral copulation by force or fear." This offense carries harsher penalties than oral copulation with a minor and is always a felony, with a potential state prison sentence ranging from three to twelve years.
- PC §261.5 on statutory rape, which is similar to oral copulation with a minor but involves sexual intercourse instead of oral sex. If the defendant engages in a consensual sexual relationship with a minor, he/she may face charges for both oral copulation with a minor and statutory rape, if something goes wrong. The penalties for statutory rape depend on the age difference between the defendant and the victim. The crime is a misdemeanor if the age difference is three years or less, a wobbler with a maximum jail sentence of three years if the defendant is more than three years older than the victim, and a wobbler with a maximum jail sentence of four years if the defendant is over 21 years old and the victim is under 16 years old.
- PC §288 on lewd acts with a minor, which involves touching a minor's body for sexual purposes. This offense is only a crime if the minor is under 14 years old or if the minor is 14 or 15 years old and the defendant is at least ten years older.
It's essential to hire an attorney experienced in this area of the law as these charges can be complicated and lead to unfavorable outcomes. Our firm has decades of experience successfully representing individuals facing legal matters similar to the cases herein. We may be reached for a consultation with one of our attorneys as soon as possible to avoid difficulties and problems that may arise in hiring a lawyer at the last minute.