Oral Copulation – California Penal Code 288a

While oral copulation in itself is not illegal in California, there are several laws against oral copulation by force or fear. Specifically, California Penal Code 288a defines what oral copulation by force or fear is:

• Oral copulation is defined as a person’s mouth making contact with the sexual organs or anus of another person.
• By force or fear means either without one of the participant’s consent, or through the use of violence, force, menace, duress, unlawful injury, fear or threat of retaliation.
• It may also apply to a person who is too intoxicated to consent, is unconscious or is legally unable to consent due to physical or mental disability or disorder.

There are many different instances in which a charge of oral copulation by fear or force could be applied. These will be discussed later. First, let’s look at penalties associated with these charges.

Penalties for Oral Copulation by Force or Fear

Oral copulation by force or fear is a felony in California. As such, it may carry state prison time of three, six or eight years, if not more. A fine of up to $10,000 may also be issued, either in addition to or instead of prison time.

In addition to prison time and/or a fine, those found guilty will also be forced to become a lifelong registered sex offender under California Penal Code 290, a.k.a. Megan’s Law. Offenders must register at least once a year with the California Department of Justice and local law enforcement. They must register their home address, as well as the name, birthday, description, photo, etc. This information appears on the official Megan’s Law website.

Every year, no more than five days after the offender’s birthday, they must update their information. Certain sentences may require more frequent registration. In addition, any time the offender moves, they must register with local law enforcement. If they move out of state, they may still need to register with local law enforcement of their new home. Failure to register is a felony in California.

Being a registered sex offender comes with a variety of other consequences. Depending on the offense, those who are registered may not be able to live in certain areas and neighborhoods. In addition, they may lose their right to bear arms, as is the case with most felonies. Finding good employment may be especially difficult. Certain physical locations and websites may be off-limits for the rest of the offender’s life. There is also a severely negative stigma that follows offenders for the rest of their lives, affecting community and romantic relationships.

While some sex crimes may be expunged from an offender’s records, a violation of California Penal Code 288a will be on a person’s record for the rest of their lives.

Examples of Illegal Oral Copulation

There are several different scenarios in which a person may be charged with oral copulation by force or fear. First, to review the definition of oral copulation in general:

• Oral copulation is any contact between one person’s mouth and another person’s sexual organs

As such, oral copulation between two consenting adults is perfectly legal. However, when fear, force or general lack of consent are involved, the act violates California Penal Code 288a.

Force

Using force or fear means using violence, threats, intimidation, etc. to either give or receive oral copulation.

For example: Christy and Jessica go out for drinks. After spending a few hours together, they go back to Christy’s apartment. There, Christy holds down Jessica, positions herself over Jessica’s face and forces Jessica to perform oral sex on her. Here, Christy may be found guilty of oral copulation by force, as she was holding Jessica down.

Fear

There are many different ways in which fear may be used in the act of oral copulation. These may include:

• A direct threat or use of violence
• A threat of retaliation, such as threatening to kidnap the person or get them fired
• Using menacing statements

For example: Geoffrey and Allison are coworkers. After they go out with their colleagues for dinner, Geoffrey agrees to drive Allison home. On the way, Geoffrey pulls over and grabs his gun out of his glovebox. He tells Allison that if she does not perform oral sex on him, he will kill her and her family. Geoffrey will likely be found guilty of oral copulation by fear.

For example: Allison is Geoffrey’s boss. Geoffrey knows his annual review is coming up, and has been preparing for weeks. His review is scheduled for after work hours. When he comes to Allison’s office, she tells him that, if he does not perform oral sex on her, not only will he not get a raise, he’ll be fired. Further, she says no one will believe him if he tries to report her, since she’s a woman and he’s a man. Allison will likely be found guilty under Code 288a.

Consent

In order for the act of oral copulation to be legal, both parties must willingly consent. Simply being in a romantic relationship or even being married does not provide sufficient consent.

For example: George and Alicia have been in a relationship for many months. Alicia agrees to perform oral sex on George. During the act, Alicia begins to feel sick and asks George to stop. However, he does not stop until he finishes, physically holding her down to complete the act. In this scenario, George may be found guilty under Code 288a.

However, there is a small caveat to this rule. If one party believes there is an actual, reasonable belief that the other party has given their consent to the act, even if said consent was nonverbal, there may be no law broken.

For example: George and Alicia are celebrating their one year anniversary in Napa Valley, and have had sex many times on their vacation. One morning, Alicia wakes up before George and decides to perform oral sex on him while he’s still sleeping. Though George did not verbally consent to this specific act, the nature of their relationship may be enough of a defense against a claim against Alicia under Code 288a.

Intoxication

Intoxication falls under the umbrella of consent. In order to be charged with copulation by force or fear when intoxication is a factor, two criteria must be proven:

• The alleged victim had consumed drugs, alcohol or some other intoxicating substance and could therefore not resist; and
• The alleged offender reasonably should have known they could not consent due to this.

There is a good bit of gray area when it comes to intoxication, as both parties may be intoxicated or, if only one party is intoxicated, they suggest the act of oral copulation. However, according to California law, a person is considered too intoxicated to consent of they are unable to actually understand the act of oral copulation, including the physical act, the morality of the act and its consequences.

For example: Pedro and Lee are drinking and watching a football game together. Pedro is drinking much more than Lee, and soon is so drunk he is nodding off. Lee, seeing Pedro is falling asleep, takes advantage of the situation and begins performing oral sex on him. Lee may be guilty of unlawful oral copulation in this scenario.

Age

In the State of California, anyone under the age of 18 is unable to legally consent to any kind of sexual act, including oral copulation — even if said act is consensual. There are a few exemptions, such as legally married couples with one spouse being underage. Unlike most states, there may be a legal defense in California if an underage participant lied about their age.

For example: Joan and Ryan met through the Tinder dating app, on which users must be at least 18. They hit it off well, and go back to Ryan’s apartment. Joan performs oral sex on Ryan. Afterward, it is discovered that Joan is only 17, while Ryan is 19. Joan’s parents find out, and press charges against Ryan. Though Ryan may be guilty under Code 228a, he may have the defense that, since users are supposed to be 18 to use Tinder, Joan lied about her age.

Unconsciousness or Trickery

Similar to intoxication, a person may be found guilty of oral copulation by fear if:

• The alleged victim is unconscious at the time of the act, and
• They are unable to resist or consent due to their state.

This law applies to those who are unconscious or asleep. It also applies to those who are unaware the act is occurring, or have been tricked into oral copulation.

For example: Geanina has lived in rural Romania for all of her life. When she is 19, she moves to California. Knowing she is unfamiliar with American customs, Andrew invites her to a party in her first week in the country and tells her it is customary for a new guest to give the host oral sex. Not knowing she’s being lied to, Geanina agrees. Andrew may now be found guilty under Code 288a.

Disability or Mental Disorder

A person may be found guilty of oral copulation by force or fear if the victim:

• Is in such a mental or physical state that they cannot understand the nature or consequences of the act, or cannot resist/consent; and
• The perpetrator should reasonably know that the victim could not resist or consent due to their disability.

For example: Louis is an 80-year-old man who suffers from severe dementia. He is living in a nursing home, being cared for by a team of nurses. His after-hours nurse, Danielle, performs oral sex on him, knowing he cannot resist and won’t recall the incident. If she is caught, Danielle will likely be charged with oral copulation by force or fear.

Associated Charges with Oral Copulation by Force or Fear

In addition to the charges above, there are several other charges that may apply to Code 288a.

If the victim is younger than 18, but at least 14, prison sentences increase to six, eight or ten years. If the victim is younger than 14, prison sentences increase to eight, ten or twelve years.

If the act of oral copulation by force or fear happened “in concert” — that is, with the aid of others — those who aided may also face charges. Prison sentences include:

• Five, seven or nine years if the victim was at least 18 years old
• Eight, ten or twelve years if the victim was between the ages of 14 and 17
• Ten, twelve or 14 years if the victim was under 14 years old

For example: Geanina has lived in rural Romania for all of her life. When she is 19, she moves to California. Knowing she is unfamiliar with American customs, Andrew invites her to a party in her first week in the country and tells her it is customary for a new guest to give the host oral sex. Other guests at the party all agree with Andrew, reassuring her that this is what she needs to do. Not knowing she’s being lied to, Geanina agrees. Andrew and all of his guests who lied to Geanina may now be found guilty under Code 288a.

Legal Defenses for Code 288a

There are a few ways an experienced criminal defense attorney may fight a charge under California Penal Code 288a. These include:

• Being falsely accused
• A lack of substantial evidence for a conviction
• The alleged victim actually being a consenting party in the act

That final point is one that presents much ambiguity. A victim may have consented originally, then decided during the act they did not want to continue — but did not say anything. In these instances, it may be more difficult to prove the alleged victim did not give consent.

In addition, some couples have alternative relationships, in which consent is understood to be given, even if one party says no. They may also have an agreement that violence, force, threats, etc. are acceptable and encouraged during sexual activity. In these kinds of cases, it can be close to impossible for a judge to distinguish what was and was not considered acceptable acts in a specific relationship — even if the couple had a “safe word.”

Contact Our Experienced Criminal Defense Lawyers Today!

With nearly every segment of oral copulation by force or fear, there are caveats that can swing a case either in favor of the alleged victim or alleged perpetrator. As such, it is vital to have an experienced criminal defense attorney on your side. If you have been charged with oral copulation by force or fear in Redlands, California or the surrounding area, contact the attorneys at Milligan Beswick Levine Knox today for a free, no-obligation consultation.

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