California “Oral Copulation” Laws – Penal Code 287 PC

Codified under penal code 287 pc[1], oral copulation is a serious sex crime offense that carries life-altering consequences if convicted. It is the act of copulating one person’s mouth with the sexual organ or anus of another. It does not require any actual penetration of the mouth or sexual organ.[2] Ordinarily, this offense can be charged in connection with rape, sexual battery, or lewd acts with a minor.

Generally, the prosecutor must prove the following elements beyond a reasonable doubt for you to be found guilty of oral copulation in California:

1. You participated in an act of oral copulation with another person;
2. The other person was under the age of 18 when the act was committed.

Additional elemental requirements may apply depending on whether the act was committed by fraud, force, or threat, or your accuser was too intoxicated to resist.

Defending Oral Copulation Charges – PC 287

Consent

With the exception of a prisoner, the prohibition against oral copulation does not apply to consenting adults. Consent means positive cooperation in an act or attitude based on an exercise of free will. In other words, the other person consents when they know the nature of the act or transaction involved. However, a current or previous dating or marital relationship is not sufficient to constitute consent – but it may be a factor to argue in raising reasonable doubt against the government’s case.

Sufficiency of Evidence

The evidence against you may have credibility issues that severely call into question the accusations. For instance, your accuser has a history of lying or being untruthful. Indeed, perhaps your accusers’ version of the incident is physically impossible or inherently improbable.

False Allegations

The alleged victim could be telling a story that is physically impossible or inherently improbable taking into account the surrounding circumstances. Unfortunately, it is not uncommon for accusers to fabricate a crime to gain leverage over personal matters.

Alibi

A complaining witness could be very specific with the time the purported sex act occurred – e.g., “it occurred on Thanksgiving.” Oftentimes, an alibi could be established proving that you were at another location, contrary to your accuser. Proving you were at another location could be established by an eye witness, video footage, or even your cell phone GPS records.

Good Faith Belief

The law extends a defense to those who reasonably and actually believe their accuser was age 18 or older at the time of the act. However, this defense does not apply if your accuser’s actual age was 15 or younger at the time of the act.

Punishment for Oral Copulation

The punishment for penal code 287 varies, depending on the age of the participants, the means used, the condition of the alleged victim, and whether the act is committed in concert with others[3]. A conviction for oral copulation mandates sex offender registration for life. However, depending on the circumstances and other mitigating factors, a person could be eligible for a probation sentence and avoid state prison altogether.

As noted above, the age difference carries the difference with respect to punishment. For instance, the act of oral copulation with a person under the age of 18 is a wobbler, punishable by either 1 year in the county jail or up to 3 years in state prison.[4] However, if you are over the age of 21, your accuser is under 16 years old, then the charge is a straight felony carrying up to 3 years in state prison. Other degrees of punishment include:

Threaten with Incarceration

Commission of an act of oral copulation against the purported victim’s will by threatening to use a public official’s authority to incarcerate, arrest, or deport the victim or another, where the victim reasonably believes that the perpetrator is a public official, must be punished 3, 6, or 8 years in state prison.[5] This is true even if you are not actually a public official.

Impersonating Spouse

Obtaining an act of oral copulation on a victim who submits under the belief that you are the victim’s spouse, given that you intentionally induced this belief by artifice, pretense, or concealment, must be punishment 3, 6, or 8 years in state prison.

Force or Violence

If you compel another person to participate in the act of oral copulation by force, threat, duress, menace, or fear of immediate and unlawful bodily injury, then the sentence carries 3, 6, or 8 years in state prison.[6] However, if the person was a minor age 14 or older, then the punishment increases to 6, 8, or 10 years in state prison.[7] If the act is accomplished by force, fear, menace, or against the person’s will who is a minor under the age of 14, then the punishment carries a sentencing range of 8, 10, or 12 years in state prison.[8]

Unconscious Victim

An act of oral copulation on an alleged victim who is unconscious of the nature of the act, the perpetrator knows this, must be punished in state prison for 3, 6, or 8 years.[9]

Intoxicated Victim

If copulation is performed against an alleged victim who is prevented from resisting by an intoxicating or anesthetic substance, or any controlled substance, whether legal or illegal, and the defendant knew or should have known the victim is incapable of resisting, then the defendant faces 3, 6, or 8 years in prison.[10]

Contact Us to Schedule a Free Consultation

If you’ve been arrested, charged, or under investigation for oral copulation under penal code 287 pc, then you need an experienced Newport Beach sex crimes attorney[11] on your side. Providing information, including a statement, to investigators could substantially impact a defense in your case. Contact the Law Offices of John D. Rogers today to schedule a free confidential consultation concerning your rights and defenses. Sex crime investigations are extremely serious and require competent legal representation. Early retention of counsel can help legally deflect the government’s investigation or case against you.

Legal Footnotes:

[1] Penal Code 287(a) “Oral copulation is the act of copulating the mouth of one person with the sexual organ or anus of another person.”

[2] See People v. Dement (2011) 53 Cal.4th 1 (the crime is committed by an contact between the mouth of one person and the sexual organ of another; penetration of the mouth or sexual organ is not required).

[3] See Penal Code 287(d)(2) & (3) for acting in concert or aiding and abetting another.

[4] Penal Code 287(b)(1) “(b) (1) Except as provided in Section 288, any person who participates in an act of oral copulation with another person who is under 18 years of age shall be punished by imprisonment in the state prison, or in a county jail for a period of not more than one year.”

[5] See Penal Code 287(k) “Any person who commits an act of oral copulation, where the act is accomplished against the victim’s will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official, shall be punished by imprisonment in the state prison for a period of three, six, or eight years.”

[6] See Penal Code 287(c)(2)(A) “Any person who commits an act of oral copulation when the act is accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for three, six, or eight years.”

[7] See Penal Code 287 (c)(2)(C) “Any person who commits an act of oral copulation upon a minor who is 14 years of age or older, when the act is accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, shall be punished by imprisonment in the state prison for 6, 8, or 10 years.”

[8] See Penal Code 287(c)(2)(B) “Any person who commits an act of oral copulation upon a person who is under 14 years of age, when the act is accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, shall be punished by imprisonment in the state prison for 8, 10, or 12 years.”

[9] See Penal Code 287(f) “Any person who commits an act of oral copulation, and the victim is at the time unconscious of the nature of the act and this is known to the person committing the act, shall be punished by imprisonment in the state prison for a period of three, six, or eight years. As used in this subdivision, “unconscious of the nature of the act” means incapable of resisting because the victim meets one of the following conditions:

(1) Was unconscious or asleep.

(2) Was not aware, knowing, perceiving, or cognizant that the act occurred.

(3) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraud in fact.

(4) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraudulent representation that the oral copulation served a professional purpose when it served no professional purpose.”

[10] See Penal Code 287(i) “Any person who commits an act of oral copulation, where the victim is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused, shall be punished by imprisonment in the state prison for a period of three, six, or eight years.”

[11] Our Newport Beach criminal lawyers handle cases all throughout southern California including Orange County, Los Angeles, Newport Beach, Ventura, San Bernardino, Riverside, San Diego, Van Nuys, San Fernando, Malibu, Newport Beach, Huntington Beach, Laguna Beach, San Clemente, Dana Point, Costa Mesa, Irvine, Fullerton, Anaheim, Seal Beach, Mission Viejo, Long Beach, Torrance, Manhattan Beach, Santa Monica, Venice, Pasadena, Norwalk, Hermosa Beach, Sherman Oaks, and Hollywood.