The statute of limitations describes the time limits within which the state must act in order to lawfully prosecute you for committing a crime.
The attorneys at Wallin & Klarich want to make you aware of what oral copulation laws prohibit, the punishments associated with being charged for oral copulation crimes and the statute of limitations for violating California’s oral copulation laws.
What is Unlawful Oral Copulation?
Illegal oral copulation means putting the mouth of one person on the sex organ or anus of another person without that person’s consent.
California oral copulation laws under Penal Code Section 288a (PC 288a) define unlawful, nonconsensual acts of oral sex and authorize the punishment you may receive if you are convicted of any of these crimes.
Penal Code Section 288a is categorized according to certain factors which affect the severity of the crime, including:
- The age of the victim, which is usually the younger person if there is a difference in age;
- The age difference between the persons involved;
- Whether the act was voluntary or forced;
- Whether a third party (or more) contributed to the act; and
- Whether the victim was unaware or unable to resist the act.
It is very important that you understand that while a minor under the age of 18 may choose to participate in oral sex, this does not mean that his or her “voluntary” participation indicates consent. Minors cannot legally consent to sexual activity in California.
What is the Purpose of the Statute of Limitations?
The statute of limitations exists to protect the integrity of the criminal justice process by making certain that suspected crimes are prosecuted fairly and reasonably according to the California and U.S. Constitutions. Over time, witnesses’ memories often fade and evidence deteriorates, making it difficult, if not impossible, to hold someone accountable for alleged criminal conduct. The law says it would be unfair to prosecute someone after a certain period of time has elapsed.
If you are available to arrest during an investigation – meaning you haven’t left the state or are not otherwise hiding from law enforcement, you cannot be prosecuted for an oral copulation crime once the statute of limitations has expired.
Statute of Limitations for Oral Copulation Crimes
The following statute of limitations applies to violations of California oral copulation laws:
- Penal Code Section 801.1(a): For felony offenses involving a victim under the age of 18, you can be prosecuted any time prior to the victim’s 28th birthday.
- Penal Code Section 801.1(b): For felony offenses involving an adult victim, you can be prosecuted within 10 years of the offense.
- Penal Code Section 802(a): For a misdemeanor offense involving a minor victim 14 to 17 years old, you can be prosecuted within one year after commission of the offense.
Exceptions to the Statute of Limitations
There are two notable exceptions to the statute of limitations in a prosecution for violating California oral copulation laws, both of which are described in Penal Code Section 803.
1. Penal Code 803 (f)(1): The Clear and Convincing Evidence Rule
A criminal complaint may be filed within one year of the date a person of any age makes a report to a California law enforcement agency alleging that, while a minor, he or she was the victim of certain sex crimes, including an oral copulation offense listed in Section 288a.
For this exception to apply, the following conditions must be met:
- The statute of limitations for other subsections of the penal code section has expired;
- The crime involved “substantial sexual conduct,” (which includes oral copulation);
- There is independent evidence other than the opinion of a mental health professional that corroborates the victim’s allegation;
- If the victim was 21 years of age or older at the time of the report, the independent evidence shall clearly and convincingly corroborate the victim’s allegation.
2. Penal Code Section 803(g): The DNA Exception Rule
California law allows DNA evidence collected from a suspect as an additional exemption to the general rules spelled out by the statute of limitations. A criminal complaint involving oral copulation may be filed within one year of the date on which the identity of the suspect is conclusively established, under the following conditions:
- The offense was committed prior to January 1, 2001, and DNA evidence collected was analyzed no later than January 1, 2004, or
- The offense was committed on or after January 1, 2001, and DNA evidence collected was analyzed within two years of the offense.
Simply put, it is possible in many cases for you to be prosecuted for an oral sex crime decades after it allegedly happened and well after the time limits described above have run out.
For example, 40 years ago, when you were 26 years old and while babysitting your 13-year-old niece, nephew or sibling, you had him or her perform oral sex on you. Today you are 66 and your 53-year-old family member accuses you of the crime. If evidence satisfying either exception rule is reported to the authorities, you could still be prosecuted for violating the law.
What is the Punishment for an Oral Copulation Conviction?
If you are found guilty of violating California oral copulation laws, you can be sentenced and punished as follows:
- PC 288a (b)(1): Participating in oral copulation with a minor under age 18 is a “wobbler” offense, meaning it may be charged as either a misdemeanor or a felony, depending on:
o the facts of the case, and
o the ages of the participants.
- PC 288a (b)(2): Oral copulation with a minor under the age of 16 if the accused is 21 years or older is a felony, punishable by 16 months, or 2 or 3 years in prison.
- PC 288a (c)(1): Oral copulation with a minor under the age of 14 who is 10 or more years younger than the accused is a felony strike, punishable by 3, 6 or 8 years in prison.
- PC 288a (c)(2): Oral copulation involving force or fear between adults is a felony strike, which is punishable by 3, 6 or 8 years in prison;
- PC 288a (c)(2)(B): Oral copulation involving force or fear with a child victim under 14 is a felony strike, punishable by 8, 10 or 12 years in prison;
- PC 288a (c)(2)(C): Oral copulation involving force or fear with a minor victim ages 14 to 17 is a felony strike, punishable by 6, 8 or 10 years in prison;
- PC 288a (c)(3): Oral copulation by threat of future retaliation or harm to the victim or another person is a felony strike, punishable by 3, 6 or 8 years in prison;
- PC 288a (d)(1): Oral copulation while voluntarily acting in concert with another person with force or fear involving an adult victim is a felony strike, punishable by 5,7 or 9 years in prison;
- PC 288a (d)(2): Oral copulation while voluntarily acting in concert with another person with force or fear involving a child victim under 14 is a felony strike, punishable by 10, 12 or 14 years in prison;
- PC 288a (d)(3): Oral copulation while voluntarily acting in concert with another person with force or fear involving a minor victim ages 14-17 is a felony strike, punishable by 8, 10 or 12 years in prison;
- PC 288a (f)-(g): Oral copulation with an adult victim unconscious, unaware or unable to give legal consent (due to a mental disorder, development or physical disability) is a felony, punishable by 3, 6 or 8 years in prison.
All felony violations of California oral copulation laws are punishable by a sentence served in prison. Additionally, a strike conviction under California’s Three Strikes Law means you must serve a minimum of 85% of your prison sentence before you are eligible for release onto parole if you are sentenced to prison. It is a serious matter if you are charged for oral copulation.
Sex Offender Registration for an Oral Copulation Conviction
A conviction for oral copulation in California is subject to lifetime sex offender registration. However, under limited circumstances, your attorney may be able to challenge imposition of a mandatory registration requirement by filing what is known as a Hofsheier motion.
If granted, this motion permits the judge to use his or her discretion to impose a sex offender registration requirement.
Wallin & Klarich Can Help You Fight Oral Copulation Charges
If you or someone you love has been accused of unlawful oral copulation, you should speak to an experienced criminal defense attorney at Wallin & Klarich right away. Our attorneys at Wallin & Klarich have over 30 years of experience successfully defending our clients facing sex crime charges.
With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, trust our attorneys at Wallin & Klarich to provide you with the very best legal representation throughout your criminal case.
Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free telephone consultation. We will get through this together.