Oral copulation is the non-consensual contact of a person’s intimate body parts and another person’s mouth. The intimate body parts may include vagina or anus. Under California law, oral copulation is not a crime if there was prior consent between the two people involved. If your partner consents to oral copulation, then he or she may not claim that it was forced against his or her will. It’s a crime to perform oral copulation on an individual under drug influence, asleep, or unconscious. According to California law, forcing a person to play oral copulation through physical force, coercion, or fear goes against PC 288a. If the prosecutor charges you with this crime, we at the California Criminal Lawyer Group will advise you regarding your legal options and offer defense services.
Elements of Oral Copulation through Fear or Force
Under California PC 288a, oral copulation is a crime against a person’s free will. If oral copulation involves an individual who is below the age of consent, it is also unlawful. This is because an individual less than 18 years cannot give consent to oral copulation. California PC 288a gives the details of oral copulation through fear, force, or threats. In order to prove you guilty of oral copulation through fear or force, The prosecutor needs to give evidence that:
- The victim did not agree to oral copulation.
- You used duress, menace, violence, unlawful bodily injury, future threats of physical harm, or fear of immediate harm.
- You engaged in the act of oral copulation with someone else.
You could be held criminally responsible, according to PC 288a for engaging in oral copulation with:
- A person who has a physical or mental disability making him or her unable to consent or agree to oral copulation
- An unconscious individual
- An individual who is intoxicated to the level that he or she cannot resist your advances
Oral Copulation with a Disabled Person
You could be guilty of a PC 288a violation if you participate in oral copulation with a physically or mentally disabled person through fear or force. The disability may prevent a disabled person from understanding the consequences and nature of oral copulation. You would be guilty of violating a PC 288a if you were aware that the disability would have hindered the victim from legally consenting to oral copulation.
Oral Copulation with Intoxicated Person
You may be charged with violating a PC 288a if you engage in oral copulation with an intoxicated person. For this law to hold, The prosecutor needs to provide evidence that proves two facts. First, he or she must show that the victim could not resist because of alcohol, drugs, or other intoxicating substances’ influence. Second, he or she must show that you were aware the victim could not have agreed to engage in oral copulation were it not for the intoxication.
According to PC 288a, intoxication influences an individual’s ability to consent to oral copulation. This is because the drug makes a victim unable to understand the possible consequences and physical nature of oral copulation.
However, an intense debate surrounds the aspect of consent during oral copulation. Most sexual activities take place when one or two people are intoxicated. Especially where both parties were intoxicated at the time of oral copulation, it is hard to prove consent.
Oral Copulation with an Unconscious Individual
You might be guilty under California PC 288a if you engage in oral copulation with an unconscious individual. For this offense to hold under California PC 288a, The prosecutor needs to prove that:
- You knew that the victim could not resist due to his or her unconsciousness
- You participated in oral copulation with an individual who was unconscious or unaware of the action's nature and implication.
The victim does not have to be literally unconscious, for PC 288a to apply according to California law. Rather, the victim needs only to be unconscious or unaware of the nature and implication of the act of oral copulation. This means the victim can be aware that oral copulation is occurring or the victim could be asleep. It could also imply that the victim is unconscious of the nature of oral copulation because he or she was deceived or tricked about what was taking place.
Fear or Force
Under California law, there are several ways of inflicting fear or force on a victim to make him or her engage in oral copulation. Under California PC 288a, the following constitutes fear or force:
- Menace-this involves making a statement, threat, or an act that shows an intention to injure another person.
- Illegal bodily injury and threat of immediate harm
- Force-you only requires minimum force to overpower another person's will under California PC 288a.
- A threat of retaliation, in case the victim fails to honor your demands- this is where you threaten to kill the victim or third party, inflict severe pain, or kidnap
- Duress-you may violate PC 288a through a threat of force; the real force may not be necessary. The threat may be implied or direct. The issue is whether your acts would make a conscious person engage in something he or she would not otherwise do.
The element of without consent in oral copulation; it is closely related to PC 261 rape, and other related sex crimes. In order to agree to oral copulation, an individual must understand the nature or type of the act and act voluntarily and freely. Even if one individual initially agrees to oral copulation and later withdraws the consent, the counterpart could be charged with oral copulation through fear or force, if he or she goes ahead with the act.
Under California law, you cannot prove that your counterpart consented to oral copulation using the following facts:
- That you and your counterpart were or had been married
- That you and your counterpart had dated or were dating
- That your counterpart requested you to use a condom
However, if you reasonably and believe that your counterpart had consented to oral copulation, you could fight your charges under California PC 288a.
Penalties for PC 288a Violation
Under California law, PC 288a is a felony crime. You could get imprisonment for up to eight years in a California State Prison, after a conviction of oral copulation using fear or force. If the complainant is a child less than 18 years, the sentence could go up. You will get imprisonment of up to ten years for a complainant between 14-18 years. Furthermore, you could receive imprisonment of up to twelve years for a complainant of fewer than 14 years. Additionally, the court might require you to pay a fine of up to $10,000 and formal probation after a conviction of violating PC 288a.
Penalties for Oral Copulation Through Fear or Force in Concert
You could increase the consequences for violating PC 288a if you commit oral copulation through fear or force in concert with another person, according to California law. If you intentionally and personally engage in oral copulation, you are liable under California PC 288a. You could also be guilty under California PC 288a, if you participate indirectly, abet, or aid another individual in engaging in oral copulation through fear or force. Oral copulation through fear or force in concert entails engaging in oral copulation in conjunction with at least one person.
The consequences for violating PC 288a in concert may send you to prison for up to nine years in a California State Prison if the complainant is above 18 years. If the complainant is between 14-18 years, you could end up in prison for twelve years. You could also face a sentence of 14 years in case the complainant is less than 14 years.
Registration as a Sex Offender
You might be a subject to California’s sex offender registry laws, after a conviction of oral copulation using fear or force under California PC 288a. You might be required to register as a tier III sex offender; this involves registering as a sex offender for the rest of your life. Sex offenders are required to register with law enforcement/police department in the county or city where they live; this is according to California's sex offender registry law.
Every time you move to another location or every five years, you will be required to renew the registration. Above the registration requirement, sex offender status can lead to a serious social stigma and pain, just like any jail sentence.
PC 288a Oral Copulation Through Fear or Force and Civil Liability
California law allows victims of sexual crimes to sue and seek compensation for sexual assault. As long as the victim can prove that the defendant committed the wrongful sexual act, he/she can be able to get compensation. In addition to a criminal conviction, you could also face civil charges for committing the offense of oral copulation through fear or force.
A civil conviction would require you to compensate the victim for pain and suffering and punitive damages. You would also have to make out-of-pocket compensation for any losses the victim might have suffered due to your actions.
The spouse or the registered domestic partner of the deceased could also seek compensation for the loss of consortium. The loss of consortium damages would result if your activities have an effect on the victim and affect his or her relationship with a spouse or domestic partner.
When the victim reaches 40 years, the statute of limitations ends. If the claimant was less than 18 years at the time, oral copulation through fear or force crime happened. The statute limitation would be ten years in case the victim was or above 18 years when oral copulation through fear or force happened. Irrespective of the victim's age during oral copulation crime, the District Attorney may file charges within a year after establishing the suspect's identity by DNA investigation. However, the District Attorney may also file charges within a year after:
- The allegation is corroborated by independent information
- The passing of all other statutes of limitations
- Allegations of oral copulation against a minor are filed in a police report
Legal Defenses to PC 288a Oral Copulation through Fear or Force Charges
The harsh penalties and social stigma attached to the conviction under California PC 288a can lead to pain and a lifetime of trouble. However, the good news is that you have several legal defenses available to fight oral copulation charges through fear or force. With the help of a competent criminal defense attorney, you can look into your case's circumstances and then come up with an effective strategy to fight the charges. The potential legal defenses to oral copulation charges may include:
Lack of Evidence
Compared to rape under PC 261, oral copulation through fear or force crime does not show obvious physical evidence like injuries on the complainant. Oral copulation through fear or force cases always turns out to be hearsays. In this situation, in order to build a case in your favor, your attorney can use investigative tools like private polygraph tests to challenge the prosecutor that the case does not hold. Other than the statements from your accuser, the prosecutor might lack hard evidence to show that the act happened.
There was Consent
Lack of consent is one of the elements a prosecutor should prove to charge you with oral copulation through fear or force crime. There is a lot of ambiguity in many cases of sexual assault about whether the defendant reasonably believed that the victim consented, or whether the victim did not consent. Such cases turn into she said, or he said type situations. You will not be guilty if you reasonably believed that the complainant had consented.
Oral copulation through fear or force case is similar to other sexual assault cases; this is in the sense that it is common for accusers to direct false accusations to the defendants. Your accuser might be a current lover or a former lover who goes ahead to make such accusations because he or she is jealous or angry. A competent attorney can help you come up with an evidential record to reveal the truth in your case.
Crimes Related to Penal Code 288a
California has several laws related to PC 288a; oral copulation through fear or force. These crimes are often charged in conjunction with PC 288a or PC 288a. These crimes include:
Sexual Battery PC 243.4
If you touch another person's private part without his/her consent for arousal, abuse, or sexual gratification, you could be guilty of a sexual battery violation. The prosecutor needs to show that you touched another person’s intimate body part against the person’s will. Unlike other sexual crimes like rape, the offense of sexual battery does not need you to engage in actual sexual intercourse of penetration for the charges to hold. You could be guilty of sexual battery even if you and the victim are in an ongoing relationship.
You could face enhanced charges for sexual battery under certain circumstances. Aggravated charges might apply if you unlawfully restrain a victim while committing sexual battery. You could also have another person restrain the victim on your behalf. If you perform a sexual battery on a disabled person, an individual who is institutionalized for medical treatment, you will face aggravated charges.
Enhanced charges will also apply if the victim was unaware of the nature of your acts because you made the victim believe that the sexual touching was for professional purposes. If you make a victim masturbate or touch another person's intimate parts, you will be guilty of aggravated sexual battery.
The offense of sexual battery is a misdemeanor if aggravating factors are not present. For a misdemeanor offense, the penalties include jail time not exceeding six months in California county jail. The court could also impose a hefty fine, not exceeding $2,000. If the victim of sexual battery was your employee, a higher penalty of $3,000 might apply.
You might also serve misdemeanor probation for five years. While on probation, you would have to fulfill the conditions of probation, including completing a batterer's education program and engaging in community services. You might also have to complete a program designed for people with compulsion issues.
A felony conviction could attract imprisonment for 2,3 or 4 years in a state prison in California. You could get additional imprisonment if the victim of sexual battery sustains a great bodily injury. The conviction could attract a maximum fine of up to $10,000. You would have to register as a tier 3 sex offender for a lifetime.
PC 261 - Rape
Under PC 261, rape refers to a non-consensual sexual activity accomplished through fraud, force, or threats. This definition is similar to the one of oral copulation through fear or force under California PC 288a. The only difference is that rape involves sexual intercourse, while oral copulation involves oral sex.
The prosecutor will have to prove several elements before accusing you of rape. It must be evident that you engaged in sexual intercourse with another person. It should be evident that while committing the offense, you and the victim were not married. The prosecutor needs to prove that the victim did not agree with your actions. You could have committed rape through duress, violence, menace, fraud, retribution, or fear of bodily injury. For you to be guilty of rape, the victim must be alive at the offense's occurrence.
It is common for a defendant to get a conviction under California PC 288a oral copulation through fear or force, and PC 261 rape simultaneously. This is because the two offenses often go hand in hand. You will receive a felony and imprisonment of up to 8 years if you get a conviction for rape under PC 261.
You can fight rape charges by stating that the victim consented to your actions when committing the offense. You could also state that you did not engage in sexual intercourse or penetration. You could also be a victim of false accusations.
Rape is an automatic felony under California law. The penalties for the offense include imprisonment in a state prison in California for a maximum of 8 years. The court might also recommend felony probation instead of jail time. If the victim sustains a great bodily injury during the offense's commission, you will get an additional 3-5 years in prison. The sentence will increase if the victim of rape is a minor.
PC 288a - Oral Copulation on a Minor
If you are guilty of oral copulation with a child even if the activity took place without fear or force or consent, you could face criminal liability under California PC 288a. This is because a child cannot agree to sex with an adult. Therefore, oral copulation is rated as a wobbler under this form of PC 288a. In this case, the prosecutor has the instructions under California law to charge you with misdemeanor or felony. In this case, the decision depends on your criminal history and the specific circumstances of the crime.
Oral copulation with a child may be a felony automatically in some circumstances. For instance, if the complainant is less than 16 years old and above 21 years, you could be convicted with a felony under California law. You could be imprisoned up to 8 years in this case.
If you face charges for oral copulation through fear or force on a minor, the prosecutor might reduce your charges if he or she does not have ample evidence against you. For instance, the prosecutor might reduce your charges to oral copulation on a minor without fear or force. After a plea bargain, you will face a lesser sentence and social stigma.
Find a California Criminal Lawyer Near Me
You should not take an accusation of oral copulation through fear or force lightly because it could be detrimental. If the prosecutor accuses you of this crime, you should contact an experienced attorney immediately. California Criminal Lawyer Group has helped many people to fight charges under California PC 288a and get the best possible outcomes. You, too, could benefit from our exceptional legal services. Reach us at 408-622-0204 and speak to one of our attorneys.