Oral Copulation Defense Attorneys – California Penal Code 288

Do You Need an Oral Copulation Defense Attorney?

Oral sex, also known as oral copulation, among consenting adults in a private place is not a crime in California. However, it is a crime to have oral sex with:

• A minor under 18 years of age;
• A person who is intoxicated or asleep/unconscious, OR
• Any person who is forced to engage in the act against his/her will. ¹

If you are convicted of oral copulation in California, you could be sentenced to up to 15 years to life in prison, depending on the facts of your case. What’s more, you will be required to register as a sex offender for the rest of your life. That is why it is essential for you to hire an experienced indecent exposure lawyer.

Call Wallin & Klarich Today

The attorneys at Wallin & Klarich have been successfully defending those facing oral copulation charges for over 30 years. Here is what some of these clients have to say about us:

You can place your trust in Wallin & Klarich. Our knowledgeable California oral copulation defense lawyers are committed to defending your rights and your freedom. Call us today for immediate help on your case.

For more information on these laws, read below or simply pick up the phone and speak to one of our skilled defense attorneys today.

Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free telephone consultation.

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Legal Definition of Oral Copulation

Oral copulation is defined as any contact, no matter how slight, of the mouth of one person with the sexual organ or anus of another person. ² Penetration is not required. ³ Nor is any proof of ejaculation required. ⁴

PC 288a defines oral copulation more broadly than the common understanding of oral sex, usually referred to as a “blow job” or “giving head” for a male, and “going down” or “eating out” for a female. Legally, oral copulation is any contact between one person’s mouth and another person’s:

• Vagina;
• Penis;
• Scrotum; OR
• Anus

Notice that this statute is gender neutral. This means that the law not only prohibits oral copulation between a male and female, but it also prohibits oral copulation between a male and another male, or a female and another female, so long as either party falls into one of the categories mentioned above. Remember that oral copulation between consenting adults is legal in the state of California.

Other Related Crimes

There are several crimes related to oral copulation with a minor. Sometimes you are charged with more than one crime, together in the same complaint. The following are crimes related to oral copulation with a minor:

• Rape (Penal Code § 261)
• Sexual Battery (Penal Code § 243.4)
• Lewd Acts on a Child – Penal Code § 288
• Continuous Sexual Abuse of a Child – Penal Code § 288.5
• Statutory Rape – Penal Code § 261.5

Prosecution for a Charge of Oral Copulation (Penal Code § 288a):

Under Penal Code § 288a, there are various charges for which you could be found guilty of. The most common charges for this crime are:

• Oral copulation by force, fear or threats
• Oral copulation with a minor
• Oral copulation of an unconscious person
• Oral copulation of an intoxication person
• Oral copulation of a disabled person

Oral Copulation by Force, Fear, or Threats (Penal Code §288a (c)(2) &(3), (k))

If you are charged with oral copulation by force in violation of PC § 288a, you will only be convicted if the prosecution proves that:

• You committed an act of oral copulation with someone else;
• The other person did not consent to the act; AND
• You accomplished the act by force, duress, menace or fear. ⁵

Each of these elements must be proven beyond a reasonable doubt in order for you to be found guilty of this crime. Let’s analyze the meaning of each element.

Consent

A person only consents to something if he/she acted freely and voluntarily and knew the nature of the act that he/she consented to. The fact that you and the victim were dating, married or ex-lovers is not enough evidence, by itself, to constitute consent. Similarly evidence that the victim requested/suggested/communicated that you use a condom or other birth control device is not enough by itself to constitute consent. ⁶

Force

This element is satisfied if you use enough physical force to overcome the other person’s free will. ⁷

Duress

Duress means a direct or implied threat of force, violence, danger, hardship, or retribution that causes a reasonable person to do something that he or she would not otherwise do.
When deciding whether the act was accomplished by duress, jurors are instructed to consider all the circumstances, including the age of the alleged victim and his/her relationship to the defendant. ⁸

Menace

Menace means a threat, statement, or act showing an intent to injure someone. ⁹

Examples of Oral Copulation by Force

1. David and Nancy go on a date and Nancy does not want to have sex. David physically holds her down and kisses her vagina.
2. Michael threatens Paul, “If you don’t give me a blow job, I will hurt your parents.” Paul complies with Michael’s request to protect his parents.

Oral Copulation with a Minor – Three Separate Charges

Essentially, there are three separate charges that you could face if you are accused of oral copulation with a minor. California Penal Code section 288a (b)(1) makes oral copulation with a minor a “wobbler” crime, which means that the prosecutor can file charges either as a misdemeanor or a felony. An even more serious crime is oral copulation with a child who is under 14 years of age at the time of the oral copulation. ¹⁰ Three possible charges are:

1. Oral copulation with a person under 18 years of age;
2. Oral copulation with a person under 14 years of age; AND/OR
3. Oral copulation with a minor under the age of 16, where defendant is 21 or Older ¹¹

1. Oral Copulation with a Minor (PC § 288a(b)(1))

In order to be convicted of oral copulation with a person who is under the age of 18 in violation of Penal Code section 288a(b)(1), the prosecution must prove that:

i. You participated in an act of oral copulation with another person; AND
ii. The other person was under the age of 18 when the act was committed. ¹²

2. Oral Copulation with Minor: Defendant 21 or Older (PC § 288a(b)(2)

To prove that you are guilty of engaging in an act of oral copulation with a person who was under the age of 16 years at a time after you reached your 21st birthday in violation of Penal Code § 288a (b)(2), the prosecution must prove that:

i. You participated in an act of oral copulation with another person;
ii. You were at least 21 years old at the time of the act; AND
iii. The other person was under the age of 16 years at the time of the act. ¹³

3. Oral Copulation with Person Under 14 (Penal Code § 288a (c)(1)

To prove that you are guilty of oral copulation of a person who was under the age of 14 and at least 10 years younger than you, the prosecution must prove that:

i. You participated in an act of oral copulation with another person; AND
ii. At the time of the act, the other person was under the age of 14 and was at least 10 years younger than you. ¹⁴

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

To prove that you are guilty of oral copulation of a person who was unconscious of the nature of the act in violation of PC § 288a(f),the prosecution must prove that:

i. You committed an act of oral copulation with another person;
ii. The other person was unable to resist because he/she was unconscious of the nature of the act; AND
iii. You knew that the other person was unable to resist because he/she was unconscious of the nature of the act. ¹⁵

Oral Copulation of an Intoxicated Person (Penal Code § 288 (a), (1))

Oral copulation of an intoxicated person is a violation of PC § 288a (i). In order to prove you are guilty of this crime, the prosecution must prove:

i. You committed an act of oral copulation with another person;
ii. An (intoxicating/anesthetic/controlled) substance prevented the other person from resisting; AND
iii. You knew or reasonably should have known that the effect of an intoxicating/anesthetic/controlled) substance prevented the other person from resisting. ¹⁶

Oral Copulation of a Disabled Person (Penal Code § 288a (a), (g))

If you are being charged for oral copulation of a mentally or physically disabled person in violation of Penal Code § 288a (g), the prosecution must prove that:

i. You committed an act of oral copulation with someone else;
ii. The other person had a (mental disorder/developmental or physical disability) that prevented him/her from legally consenting; ¹⁷ AND
iii. You 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.

Defenses to a Charge of Oral Copulation (PC § 288a)

Defense to Oral Copulation

While every forced oral copulation case must be evaluated on its specific facts, there may be strong defenses against oral copulation by force charges.

Alleged Victim Consented

If you can prove the victim consented to oral sex, this is a complete defense.

Alleged Victim is Lying

Alleged victims, particularly younger alleged victims, may fabricate and lie about these extremely serious charges. The alleged victim or the alleged victim’s family may have animosity or a personal vendetta against you for unrelated reasons and use sexual abuse allegations to harm you.

In other cases, parents may force or manipulate their children into lying about sexual abuse by family members or even strangers. In these cases, the defendant is the only true victim.

Statute of Limitations

A misdemeanor violation of Penal Code § 288a must be prosecuted within one year from the date of the offense. ¹⁸ 

However, a felony violation may be prosecuted as follows:

• Until the victim’s 28th birthday. This applies if the victim was a minor; OR
• Within ten (10) years from the commission of the offense. This applies to any felony sex offense listed under Penal Code § 290 (c).

Statute of limitations could be a valid defense in your case if the alleged crime was not prosecuted in accordance with the law.

Defense to Oral Copulation with a Minor

Keep in mind that a minor does not have the legal capacity to consent to oral copulation. Therefore in the case of oral copulation with a minor, it is not a defense that the other person consented to the sexual act.

Good Faith Belief Victim was Over 18

You will not be found guilty of this crime if you can show that you reasonably believed that the other person was age 18 or older. The Prosecution must prove beyond a reasonable doubt that the defendant did not reasonably and actually believe that the other person was at least 18 years old. If the Prosecution has not met this burden, then it must find you not guilty of this crime.

Sentencing and Punishment upon a Conviction for Oral Copulation (PC § 288a)

If you are convicted of any charge under PC § 288a, you have a lifetime duty to register as a sex offender under California Penal Code Section 290. If you fail to register as a sex offender, you are committing a separate crime, punishable by up to three years of state prison. ¹⁹

Oral Copulation by Force

If the victim of oral copulation by force was an adult, the sentence is up to eight years in state prison. If the victim of oral copulation by force was between 14 and 18 years old, the sentence is up to 10 years in state prison. If the victim was under 14 years of age, the sentence is up to 12 years in state prison. If the child was under 10 years old, the prosecution could proceed under Penal Code 288.7 – sex with a child under 10. This carries a sentence of 15 years to life in state prison.

Oral Copulation with a Minor

As a misdemeanor, oral copulation with a minor carries up to one year in county jail. As a felony, it carries up to three years in the California State Prison. If the defendant was over 21 and the minor younger than 16 at the time of the sexual activity, then Penal Code § 288a (b)(2) makes the crime a straight felony (rather than a wobbler). As such it still carries up to 3 years of state prison.

Oral Copulation with a Child Under 14

If the victim was under 14 years of age at the time of the oral copulation, and the alleged perpetrator was at least 10 years older than the child, the crime becomes a more serious felony, punishable by up to 8 years of state prison.

If the child is less than 14 years old, but the age gap is less than 10 years, prosecutors could alternatively charge Penal Code § 288 lewd acts with a child. Any act that meets the definition of oral copulation would almost certainly also meet the definition of a “lewd act.” And Penal Code § 288 carries the same sentencing range as 288a, namely, up to 8 years state prison per count.

Oral Copulation – FAQ’s (PC § 288a)

The following are some Frequently Asked Questions (FAQ’s) from other clients facing charges of oral copulation in violation of Penal Code § 288a.

1. What is oral copulation?

Oral copulation is oral sex. It is the act of one person’s mouth coming in contact with another person’s sexual organ or anus of another person.

2. If I am convicted, do I have to register as a sex offender?

Yes. If you are convicted of any charge under PC § 288a, you have a lifetime duty to register as a sex offender. If you fail to register as a sex offender, you are committing a separate crime, punishable by up to 3 years of state prison.

3. What is a wobbler?

It is a crime that prosecutors can charge as either a misdemeanor or a felony. Similarly judges can sentence a wobbler as either a misdemeanor or a felony. Prosecutors have the choice of whether to charge a wobbler as a felony or a misdemeanor. However, even when prosecutors choose one over the other, judges typically have the final say. For example, if prosecutors charge a wobbler as a felony, the judge can reduce it to a misdemeanor at sentencing. The facts of the crime and the circumstances surrounding the offender often dictate whether prosecutors and judges select the misdemeanor or felony label.

4. Is a conviction for oral copulation by force a misdemeanor or a felony?

It is a wobbler and can be charged as a misdemeanor or a felony.

5. When is oral copulation a straight felony?

If the defendant was over 21 and the minor younger than 16 at the time of the sexual activity, then Penal Code § 288a (b)(2) makes the crime a straight felony.

6. Can I be convicted of oral copulation with a minor if my partner told me he/she was an adult and I believed him/her?

California allows the defense, “reasonable, good-faith mistake of age” against a charge of oral copulation with a minor. If you are charged with oral copulation with a minor, you are permitted to offer evidence that you reasonably and in good faith believed that the victim was over the age of consent. Such evidence may include your own testimony about your belief and the basis for that belief.

7. Who can give consent?

Minors cannot legally consent to sexual activity. An adult, 18 years of age and older can consent to sexual activity. A person who is intoxicated or unconscious also cannot legally consent to sexual activity. A person only consents to something if he/she acted freely and voluntarily and knew the nature of the act that he/she consented to.

Wallin & Klarich Can Help You Fight Charges of Oral Copulation

If you or a loved one has been charged with Oral Copulation in violation of California Penal Code § 288a, you should contact one of our experienced criminal defense attorneys at Wallin & Klarich as soon as possible. You could be prosecuted for a felony, which could lead to prison time.

Our attorneys at Wallin & Klarich have over 30 years of experience defending clients facing sex crime charges. Hiring an attorney from Wallin & Klarich is your best chance to avoid the serious consequences of a conviction for oral copulation.

With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, our criminal defense attorneys at Wallin & Klarich are available 24 hours a day, 7 days a week to provide you with the very best legal representation. We are dedicated to giving you the personal attention you expect to help you through this difficult time. We are here to help you get the best result possible in your case.

Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free telephone consultation. We will get through this together.

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<sup>1. [Penal Code § 288a]↩
2. [Penal Code § 288a (a)]↩
3. [CALCRIM 1080 Jury Instructions as to Penal Code § 288a.]↩
4. [People v. Dement (2011) 133 Cal.Rptr.3d 496, 53 Cal.4th 1]↩
5. [CALCRIM 1015 Jury Instructions as to Penal Code § 288a (c)(2) & (3), (k)]↩
6. [CALCRIM 1015 Jury Instructions as to Penal Code § 288a (c)(2) & (3), (k)]↩
7. [People v. Griffin (2004) 22 Cal.4th 1015, 1023-1024]↩
8. [People v. Leal (2004) 33 Cal.4th 999, 1004-1010]↩
9. [Penal Code § 261(c) ]↩
10. [Penal Code § 288a (c)(1) ]↩
11. [Penal Code § 288a (b)(2)]↩
12. [CALCRIM 1082 Jury Instructions as to Penal Code § 288a (b)(1)]↩
13. [CALCRIM 1081 Jury Instructions as to Penal Code § 288a (b)(2)]↩
14. [CALCRIM 1080 Jury Instructions as to Penal Code § 288a (c)(1)]↩
15. [CALCRIM 1018 Jury Instructions as to Penal Code § 288a (a), (f)]↩
16. [CALCRIM 1017 Jury Instructions as to Penal Code § 288a (a)(1)]↩
17. [CALCRIM 1019 Jury Instructions as to Penal Code § 288a (a)(g)]↩
18. [Penal Code § 801.1]↩
19. [Penal Code § 290 (b) and § 290.018]↩</sup>