Oral Copulation Laws & Defense
California PC 288a(b)(1) through PC 288a(k)
Information on the crime of oral copulation is found at California penal code 288a. There are several varieties of oral copulations charges depending on the circumstances of the case. For example, oral copulation by force is charged under PC 288a(c)(2)(A), whereas oral copulation of an intoxicated victim is charged under PC 288a(j). See below for a complete list of California oral copulation charges and their corresponding penalties.
What is 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. Penetration is not required (Penal Code 288a). Oral copulation of a man is also known as fellatio; oral copulation of a woman is also known as cunnilingus.
Oral copulation between two consenting adults is legal in California, so long as neither person is in jail or in a mental institution (Penal Codes 288a(e) & 288a(h)).
Persons under the age of eighteen (18) are legally incapable of giving consent. Oral copulation against minors carry longer prison sentences than oral copulation crimes against adults (with a few exceptions).
In order to prove the crime of oral copulation the district attorney will need to prove that the defendant:
- Committed an act of oral copulation with another person, and
- The other person did not consent, or could not legally consent (minors, unconscious persons, and incompetent persons), and
- The defendant accomplished the oral copulation by force, violence, duress, or threats of immediate bodily injury to the victim or someone else.
Note: Evidence that the defendant was married to, or dating, the alleged victim, is not a defense to PC 288a crimes.
Punishment for Oral Copulation
Oral copulation crimes are usually charged as felonies. Only two oral copulation crimes may be charged alternatively as misdemeanors. Those two charges are oral copulation with a person under eighteen but older than fifteen (15) (PC 288a(b)(1)), and oral copulation while in jail (PC 288a(e). The list of oral copulation crimes at right includes the maximum prison sentence associated with any particular oral copulation crime.
Sex offender registration: All oral copulation convictions require the defendant to register as a sex offender pursuant to California's sex offender registration law (Penal Code 290).
Strike Offense: Any oral copulation on a minor, or in concert with other defendants, are considered strike offenses under California's Three Strikes Sentencing Law. Convictions of strike offenses subject the defendant to reduced good-conduct credit earning potential while in prison and increased penalties upon subsequent criminal convictions.
Consecutive Sentencing: Prison sentences for oral copulation crimes run consecutive to other sex offenses charged in the same criminal complaint, as opposed to concurrent sentencing regularly ordered in non-sex crime offenses.
Moral Turpitude: Oral copulation crimes are considered crimes of moral turpitude. Moral turpitude crimes are considered to be morally wrong. Non-U.S. citizens may be deported for crimes of moral turpitude. In addition, defendants with professional licenses, such as doctors, nurses, etc., may have his or her professional license suspended for any conviction of a moral turpitude crime.
Additional Punishments: All PC 288a crimes are subject to fines, victim restitution, criminal restraining orders (protective orders), civil lawsuits, long probation or parole sentences, and more.
Defense to Oral Copulation Crimes
Defenses to oral copulation crimes are as varied as the charges themselves. Only after a review of the evidence can a determination be made as to what defense is applicable for any particular charge. Below is a list of the more common defenses to PC 288a crimes.
Consent: Consent is a defense to many, but not all, oral copulation crimes. Minors, intoxicated persons, inmates in jail, and unconscious persons cannot consent to oral copulation. Also, even if the alleged victim did not consent but the defendant reasonably and honestly believed that the alleged victim did in fact consent the defendant is entitled to a finding of not guilty.
Note: Evidence that the alleged victim requested or suggested a condom or other protection does not, by itself, equal consent. Consent is usually implied from all of the surrounding circumstances.
Mistake of Fact: If the defendant reasonably and honestly believed that the alleged victim consented, or that the alleged victim was an adult, the defendant may be entitled to a finding of not guilty.
Intoxication: If the defendant was intoxicated by drugs or alcohol to the point that he or she could not form the specific intent to commit oral copulation at the time of the alleged offense then the defendant is entitled to a finding of not guilty.
Coerced & Improper Confessions: Most oral copulation charges are supported by single witness testimony. To strengthen the criminal charges against the defendant the police will sometimes use improper tactics to gain a confession from the defendant. Overzealous investigators have been known to coerce a confession from a defendant, or interview a defendant without advising the defendant of his or her rights. These improper police tactics are not always purposeful, but nevertheless, may lead to a suppression of the confession.
Other Defenses: Other defenses to oral copulation include statute of limitations, insanity, alibi, and more.
Why choose our defense firm?
We are successful, experienced, and aggressive in the unique area of sex crimes defense. Sex crimes, including charges of oral copulation charged under PC 288a, have been a focus of our firm from the very start and we have successfully defended in sex crimes trials.
We have defended hundreds of sex crimes of every type, including lewd act on a minor (PC 288(a)), continuous sexual abuse of a minor (PC 288.5), oral copulation (PC 288a), sexual penetration (PC 289h), sexual battery (PC 243.4), sodomy (PC 286), Incest (PC 285), prostitution (PC 647(b)), pimping (PC 266h), indecent exposure (PC 314), child porn (PC 311), kidnapping to commit a sex crimes (PC 209(b)(1)), keeping a house of prostitution (PC 315), and annoying or molesting a child (PC 646.7).
If you have been accused of the crime of oral copulation, or penal code 288a, contact our criminal defense firm today, and without delay, for a free consultation. Call today!
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Penal Code 288a charges and penalties
PC 288a(b)(1) Oral copulation with a person under the age of eighteen (18). [Felony crime punishable by up to three years in prison. May be charged as a misdemeanor if no force was used. Misdemeanor PC 288a(b)(1) is punishable by up to one (1) year in jail].
PC 288a(b)(2) Oral copulation with a person under the age of sixteen (16). [Felony crime punishable by up to three years in prison].
PC 288a(c)(1) Oral copulation with a person under the age of fourteen (14). [Felony crime punishable by up to eight (8) years in prison].
PC 288a(c)(2)(A) Oral copulation by force on an adult [Felony crime punishable by up to eight (8) years in prison].
PC 288a(c)(2)(B) Oral copulation with a child under fourteen (14) by force. [Felony crime punishable by up to twelve (12) years in prison].
PC 288a(c)(2)(C) Oral copulation by force on a child between the ages of fourteen and seventeen (14-17). [Felony crime punishable by up to ten (10) years in prison]
PC 288a(c)(3) Oral copulation with a threat of retaliation [Felony crime punishable by up to eight (8) years in prison].
PC 288a(d)(1) Oral copulation in concert [Felony crime punishable by up to nine (9) years in prison].
PC 288a(d)(2) Oral copulation with a child in concert [Felony crime punishable by up to fourteen (14) years in prison].
PC 288)a(d)(3) Oral copulation with a child between the ages of fourteen and seventeen (14-17) with in concert. [Felony crime punishable by up to twelve (12) years in prison].
PC 288a(e) Oral copulation while in jail or prison [Felony crime punishable by up to three years in prison].
PC 288a(f) Oral copulation of an unconscious person [Felony crime punishable by up to eight (8) years in prison].
PC 288a(h) Oral copulation while confined in a state hospital [Felony crime punishable by up to three (3) years in prison].
PC 288a(i) Oral copulation of intoxicated person [Felony crime punishable by up to eight (8) years in prison].
PC 288a(k) Oral copulation by threats of arrest or deportation [Felony crime punishable by up to eight (8) years in prison].
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