Nonconsensual contact with another person can lead to charges for a sex crime such as oral copulation by force. These serious charges could lead to incarceration in state prison with hefty fines and mandatory registration as a sex offender.

The LA Criminal Defense Law Firm in Los Angeles will walk with you during the court process to fight against the charges you face. We focus on your case as unique with different circumstances then work to develop the right defense strategy.

Legal Definition of Oral Copulation by Force

California Penal Code 288a defines oral copulation by force or fear as:

  • Making contact between the sexual organ or anus of one person with the mouth of another (oral copulation)
  • Without the consent of the other person
  • Using duress, fear, force, menace, or violence of immediate and unlawful bodily harm or the threat of retaliation against a person

The crime of oral copulation by force or fear has different elements depending on the crime’s nature and the victim of the offense. The basic form of the sex offense has the following elements:

  • The defendant committed an act of oral copulation with another person
  • Without the consent of that person
  • Through force, violence, menace, duress, or fear of immediate and unlawful harm to the person or another or future threats of retaliation

Understanding the terms used in defining the crime can make it easier to understand the offense’s legal definition.

Oral copulation under this statute refers to any contact, however slight, between one person’s mouth and the sexual organ or anus of another person. Oral copulation does not require that penetration occur. Sexual organs for males include the scrotum and penis and the vagina for women.

Consent is an important factor in determining whether you committed a sexual offense against the victim's consent. Consent refers to compliance with another person's proposition based on an understanding of the act's true nature.

For sexual crimes, a minor (anyone under 18 years) cannot legally consent to sexual activity. In addition, situations such as the following do not necessarily grant consent:

  • You are dating or have dated the victim.
  • You were married to the victim.

A person who has a mental disorder, physical disability (including unconsciousness) or is mentally incapacitated cannot consent to sexual activity.

  • Force means enough physical force to overwhelm another person's will.
  • Duress means an implied or direct threat of injury, force, violence, hardship, or retaliation that would compel the victim to act against his or her will.
  • Menace means a threat that implies the perpetrator's intent to hurt the victim.

Cases that would involve oral copulation by threat or force include:

  • A boyfriend threatens to kill the girlfriend if he or she does not perform oral sex on him.
  • A random stranger withdraws a knife and compels another person to perform oral sex on him.
  • A woman performs oral sex on a man after he threatens to kidnap her child.

The prosecution can charge you with the offense if the following are true:

  • You committed an act of oral copulation with a person who could not resist due to intoxication.
  • The person was unconscious of the nature of the act.
  • You committed with a person who cannot legally consent to the act due to a physical or psychological disability or a mental disorder.

You are guilty of committing oral intoxication of an intoxicated person if you satisfy the elements of the offense and the following are true:

  • The victim was incapable of resisting because he or she had consumed an intoxicating substance voluntarily or involuntarily.
  • You knew or should have reasonably known that the victim could not consent due to intoxication.

Engaging in oral copulation with an unconscious person could also lead to charges for oral copulation by force or fear if:

  • The victim is unconscious of the nature of the act.
  • You should know or knew that the person could not resist due to this.

Being unconscious of the nature of the act applies in different scenarios, such as when the victim is:

  • Asleep
  • Unaware that the act is occurring
  • Is unaware of the nature of the act because the perpetrator misrepresented the act due to trickery, lies or concealed information

You will be charged with oral copulation of a disabled person if:

  • The victim has a mental disorder, physical disability, or a developmental disability that prevents him or her from understanding the nature and consequences of the act.
  • You know or should have reasonably known that the disability prevents him or her from giving legal consent to sexual activity.

Penalties for Oral Copulation by Force or Fear

Oral copulation by force or fear is a California felony. The penalties for the basic form of the offense include:

  • Felony probation except if the victim was unconscious or intoxicated
  • Incarceration in state prison for three, six or eight years
  • Up to $10,000 in fines

The penalties are stiffer if the victim was a minor as follows:

  • Incarceration in state prison for six, eight, or ten years if the victim was 14 years or older
  • A state prison sentence of eight, ten or twelve years if the victim was younger than 14 years

The court will also impose stiffer penalties if you committed the act with at least one other person (in concert). The penalties will apply if you participated in the crime, or facilitated another person to commit the crime (aiding and abetting)

The penalties for oral copulation by force or fear in concert include:

  • A state prison sentence of five, seven, or nine years for adult victims
  • Eight, ten, or twelve years in state prison for a minor who was fourteen or older at the time of the offense
  • Ten, twelve or fourteen years if the victim was younger than fourteen

A conviction for oral copulation by force or fear comes with a requirement to register as a tier-three sex offender for life. You have to renew your registration every year within five working days of your birthday, and every time you move to a new residence.

The requirement that you register as a sex offender can affect your education, career, and professional licensure. You cannot work in certain professions, and in some cases, you will lose your professional license.

In addition to the criminal penalties of a conviction, the victim could sue you for compensatory damages for the offense. The victim could sue you in civil court for sexual assault where you might have to compensate him or her for the following damages:

  • Pain and suffering
  • Punitive damages
  • Loss of consortium (if the victim suffers a loss of consortium due to the offense)
  • Medical damages
  • Lost wages

Note that the victim can recover these damages even if you were not convicted for the criminal offense.

Oral Copulation with a Minor

California Penal code 288a also prohibits oral copulation with a person who is under 18 years of age. Under this statute, you can be charged with the offense even if the minor consented to sexual activity.

The offense can also include oral copulation by force with a minor. This statute maintains that any person under 18 years cannot legally consent to sexual activity.

California does not have Romeo and Juliet laws, which excuse offenders who are close in age even if they are minors. This means that you could be charged with oral copulation with a minor even if both of you are minors, you understood the nature of the act and consented to the act.

While it is rare for courts to prosecute juveniles on juvenile oral copulation crimes, you could be charged with the offense.

The penalties for oral copulation with a minor will vary depending on the alleged victim's age and that of the perpetrator. The offense is a wobbler if the victim was at least 16 years old, and the victim was not older than 21 when the offense occurred. When charged as a misdemeanor, the penalties will include:

  • Summary probation
  • Up to a year in county jail
  • Up to $1000 in fines

The penalties if the offense is a felony include:

  • Incarceration in state prison for sixteen months, two, or three years
  • Formal probation
  • Up to $10,000 in fines

Oral copulation with a minor is a felony offense if the victim was under 16, and the perpetrator was over 21 years at the time of the offense. The penalties could include probation, incarceration, and fines as above.

The incarceration period increases to between three and eight years if the victim was younger than 14, and the perpetrator was ten or more years older than the victim at the time of the offense.

If the crime did not involve force or fear, you would be required to register as a tier-one or tier-two sex offender. You would be required to register as a tier-three sex offender if you used force or threat, aided, or abetted another person in committing the offense.

Failure to register as a sex offender can lead to further charges for either a felony or a misdemeanor, depending on the conviction’s nature.

Legal Defenses

Legal defenses are the arguments (backed with proof) that you present to fight the charges you are facing. You can use these defenses both at the pretrial and trial stages of your case.

Building a solid defense strategy makes a significant difference in the outcome of your case, but the most important thing you can do to facilitate the defense is to hire a defense attorney with the expertise in handling sex crimes.

A solid defense strategy seeks to shake the foundation of the prosecution’s case. Note that the prosecution has to prove every element of the crime beyond a reasonable doubt, which is a high standard.

The prosecution will do its best to present incriminating evidence, including statements you could have made during or after your arrest.

Some of the defenses an attorney can use in oral copulation by force or fear charge include:

1.      False Accusations

False accusations are common in sex crimes. Whether you committed the offense or not, most people tend to believe the alleged victim before they can prove that the accused is innocent of the crime.

While you might try to convince the police that you did not commit the offense, "that's what they all say" is what you might get.

The prosecution will proceed to press charges against you based on the existing evidence, and you could be wrongly convicted if you fail to provide convincing evidence that you did not commit the offense.

Sex crime attorneys understand that you could be falsely accused of oral copulation by force/threat due to the alleged victim's malice or desire for revenge.

False accusations could also arise from mistaken identity, especially where the perpetrator is not a person known to the victim.

Other causes of false accusations include:

  • A stepchild that does not want you in their lives
  • A spouse or partner who wants to hide their unfaithfulness
  • Shame due to committing the act, then the person hides their embarrassment by accusing you falsely.

Whatever the cause of the false accusation, your attorney will present evidence that proves that you did not commit the offense.

Your attorney could also cross-examine the victim and any witnesses presented by the prosecution.

Some cases of false accusations arise due to mistaken identification. In this case, your attorney will examine the procedure used in suspect identification and provide the testimony of an alibi who can prove that you were not at the place where the victim was assaulted.

The court will dismiss your charges or acquit you if you can prove that you were falsely accused of the offense.

2.      Consent

Oral copulation becomes an offense if the other party did not consent to the act. Your partner must give consent voluntarily and with a clear understanding of the nature and potential consequences of the act. In addition, the consenting party can choose to withdraw consent at any time.

You could use consent as a defense if the alleged victim agreed to engage in the activity. In some cases, you can use the defense that you had a good faith belief that the alleged victim consented to oral copulation.

An example: Louisa performs oral sex on her girlfriend, Sherry, who neither objects nor shows signs of disagreeing with the act. Sherry later claims that Louisa orally copulated with her without her consent. In this case, Louisa might have a reasonable and good faith belief that her girlfriend consented to the act, and therefore not guilty of the offense.

If you are being charged with oral copulation with a minor, you can defend yourself by asserting that you believed the victim was an adult. This belief could be based on:

  • The words and proof of the victim, for instance, an ID.
  • The appearance, dress, and makeup of the victim
  • The place you and the alleged victim met (for instance, if you find the alleged victim in a bar, you could assume that he or she is an adult since bars allow people 21 years or older to drink.

3.      Insufficient Evidence

Charges of oral copulation by force are serious ones with severe consequences for those convicted. Therefore, the prosecution has to present sufficient evidence to prove that you committed the offense beyond a reasonable doubt.

For instance, a case that relies upon he said/she said statements without physical evidence of the crime is not sufficient for a conviction.

The moment after your arrest for an offense can be confusing, especially if this is your first offense. You are understandably confused and likely to develop an attitude of cooperating with the police (owning your guilt) to make matters easier for you.

However, most people make mistakes at this stage and end up complicating their defense process. Here are some of the dos and don’ts if you are accused of oral copulation by force or fear:

  • Do not communicate with the officers on any matter related to your guilt or innocence. You can provide them with the information required for booking but invoke your right to remain silent if the police question you about the case. You should not give any statements until you have spoken to an attorney to avoid incriminating yourself.
  • Contact an experienced sex crime attorney to advise you on the next steps and protect you from incriminating yourself through the tactics used by law enforcement officials.
  • Ask your attorney about the consequences of the offense to have a clear understanding of what to expect and how your case might turn out depending on the circumstances.

Work with your attorney and provide the relevant facts that he or she needs to defend you. You should mention whether you have had similar charges that could affect or that the prosecution could use to defend you.

Expunging Your Record

Expunging your criminal records for a conviction under PC 288a can provide several benefits for your career and education. You are eligible to expunge the record if:

  • You did not serve time in state prison
  • You have completed your probation successfully
  • You are not currently charged, or serving time or probation for another offense

Expunging your criminal records can relieve you of the burden of carrying a criminal conviction, but it will not save you from the requirement to register as a sex offender. In addition, you cannot expunge your records if the victim was under 14 years, and you were ten or more years older than the victim was at the time of the offense.

Related Offenses

You could also be charged with other related crimes along with or instead of oral copulation by force or fear. These offenses include:

1.      Rape

California Penal Code 261 defines rape as an act of sexual intercourse with another person without this person's consent. Rape is a form of nonconsensual intercourse accomplished through force, duress, violence, or fraud.

Unlike oral copulation, however, rape includes actual penetration of the victim's vagina or anus with the penis of the perpetrator.

You could be charged with both offenses if you raped the victim and performed or had the victim perform oral sex on you through force or fraud.

The penalties of rape will depend on the type of offense, the relationship between you and the victim, and the victim's age. For instance, you could be charged with date rape, statutory rape, or spousal rape. In most cases, rape is a felony offense with up to 8 years in state prison.

2.      Sexual Battery

According to PC 243.4, sexual battery is the unlawful touching of another person’s intimate parts without that person’s consent for sexual abuse, gratification, or arousal.

With a strong defense, you could have the charges reduced to sexual battery, which has lesser penalties than oral copulation by force, especially if you are charged with misdemeanor sexual battery.

Sexual battery is a California wobbler and can be charged as a felony or a misdemeanor depending on the circumstances of the offense. A misdemeanor conviction carries the following penalties:

  • A jail sentence of up to six months
  • Between $2000 and $3000 in fines
  • Summary probation
  • Registration as a tier-one sex offender for at least ten years

A felony conviction attracts the following penalties:

  • Formal probation
  • Up to four years in state prison
  • Up to $10,000 in fines
  • Lifetime registration as a sex offender

Find a Sex Crimes Defense Attorney Near Me

Charges for oral copulation by force could change your life forever. Facing charges for sex crimes can subject you to undue stigma, isolation, career ruin, and an uncertain future for your education. You can avoid or minimize these consequences with the help of an oral copulation defense attorney.

The LA Criminal Defense Law Firm has worked with clients facing charges for oral copulation by force. We work diligently on your case, identifying ways to defend you, restore your freedom, or convince the prosecution to reduce your charges.

Call us today at 310-935-1675 with any questions you might have.