California “Oral Copulation” Laws – Penal Code 288a PC

June 26, 2018

Codified under penal code 288a 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, threat, or your accuser was too intoxicated to resist.

Defending Oral Copulation Charges – PC 288a

  • Consent: With the exception of a prisoner, prohibition against oral copulation does not apply to consenting adults. Consent means positive cooperation in 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 in the government’s case against you.
  • Sufficiency of Evidence: The evidence against you may have credibility issues that severely call into question the accusations. For instance, your accuser who have a previous history of lying or being untruthful. Or 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.” Often times, 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 cellular 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.

Punishment for Oral Copulation

The punishment for PC 288a 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. 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. However, if you are over the age of 21, the your accuser is under 16 years old, then the charge is a straight felony carries 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 believe that the perpetrator is a public official, must be punished 3, 6, or 8 years in state prison. This is true even if you are not actually a public official.[3]
  • 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.[4]
  • 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.[5] However, if the person was a minor age 14 or older, then the punishment increases to 6, 8, or 10 years in state prison.[6]
  • 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 punishment in state prison for 3, 6, or 8 years.

Contact Us to Schedule a Free Consultation

If you’ve been arrested, charged, or under investigation for oral copulation under penal code 288a pc, then you need an experienced Newport Beach sex crimes attorney 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.

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Legal References:

[1] (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 288a(k).

[4] See Penal Code 288a(j).

[5] See Penal Code 288a(c)(2)(A).

[6] See Penal Code 288a(c)(2)(C).

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