California State Law defines oral copulation by fear or force as non-consensual contact between a person's mouth and genitalia of another. This offense is classified as a serious sex crime and is charged under Penal Code 288(a). Oral sex performed through fear or force is a serious crime, and a conviction could attract severe legal consequences such as jail sentence and hefty court fines.
Also, a defendant must adhere to sex offender registration under CPC 1203. If you, your spouse, or relative is facing criminal charges under CPC 288(a), it would be wise to navigate the situation with the help of a competent legal representative. At Orange County Criminal Lawyer, we work diligently to defend you. We serve clients throughout Orange County, CA, to ensure the best outcome of their cases.
Overview of Oral Copulation by Fear or Force
Engaging in oral sex in the right circumstances is not illegal in California. However, you violate CPC 288(a) by forcefully engaging in oral sex with another person. California law defines oral sex as contact between one person's genitalia or anus with another's mouth without consent from both parties.
It is crucial to understand that any sexual act becomes illegal when one person does not give their permission to be involved. When you face charges for using force to engage in oral sex with someone, you will remain innocent until the prosecutor can prove your guilt. The prosecutor has the burden to prove these factors of crime before you are convicted:
You Engaged in Oral Sex with Another Person
The prosecutor must establish to the court that there was contact between a person's private area and another person's mouth. The significance of the touch does not matter. Even slight touching could attract an arrest and charges under CPC 288(a). Sexual penetration or ejaculation does not need to be present for one to face these charges.
You did not Have consent from the Other Party
Oral copulation is legal in California. However, when done without one person's consent, you can be arrested and charged under CPC 288(a). Before you are convicted, the prosecution must prove that the other party did not consent to the act. Even when the alleged victim gave consent but later changed their mind, you can still be convicted if you continued to act after the withdrawal of consent. You would be considered to have lacked authorization even when you were married to the victim.
You Used Fear/Force to Engage in the Act
The prosecutor has the responsibility to demonstrate that you used the following situations to engage in oral sex with another person:
- The prosecutor must prove that you used the minimum force necessary to overcome the other person's will.
- This element establishes that you threatened to use force on the victim. Actual power is not required to confirm that you used threats. If you threatened to cause serious injury to the victim and acted in fear, you will face a conviction for oral copulation by fear.
- You threatened to harm the immediate family of the alleged victim if they failed to take part in the act of oral copulation
Oral copulation Involving an Intoxicated Person
Some situations could cause you to be arrested and charged Under CPC 288(a) even when you did not use force or fear. Engaging in oral copulation with a person who is intoxicated with alcohol or other drugs is a crime. However, you must have known that the victim could not give their permission to be involved in the act. Most people who engage in sexual activities do it while under the influence of drugs or alcohol.
Therefore, it is common for one to face these charges even when you don't remember the occurrences. The law considers an intoxicated person as one who does not understand the nature and consequences of their actions. Defending yourself from charges for oral copulation with a drunk person could prove difficult. Therefore, guidance from a criminal lawyer is crucial.
Oral Sex Involving Unconscious persons
You violate CPC 288(a) when you engage in oral sex with an unconscious person. A person is considered unconscious under the law if they do not understand the action in which they are participating. Actual unconsciousness is not necessary for you to face a conviction. As long as the person was not able to resist oral sex, they are considered unconscious.
Oral Sex Involving a Disabled Person
If you take part in oral sex with a disabled person, you can face charges for Oral copulation by force or fear. A person is disabled if they have a mental condition, which prevents them from understanding the nature of their conduct and the likely repercussions before being convicted under these circumstances. The prosecutor must show that you knew of the mental incapacitation of the alleged victim.
Penalties for California Penal Code 288(a)
In California, using force or threats to have oral sex with another person is always a felony. Even when you did not physically participate in the act but aided the perpetrator, you may be subjected to these legal penalties:
- Formal probation. California courts often offer probation as an alternative to prison after a conviction. Formal probation usually lasts for three to five years. While you are serving probation, you are expected to adhere to all terms of the sentence. However, it is crucial to know that probation is only available for you if you participated in oral sex with a mentally incapacitated person. If your case was based on force and fear or an intoxicated person, you must serve a prison sentence.
- Prison sentence. After a conviction for using force or fear to participate in oral sex, you will face a prison sentence of up to eight years. However, for oral sex that involved a minor, the penalty may increase to fourteen years.
- Fines. An individual who is convicted under CPC 288(a) may be required to pay court fines amounting to $10,000
Besides the legal consequences that you differ after a conviction for engaging in forced oral copulation, you may be subjected to California Sex offender registration. The registration will need renewal every five years. When you apply for a job, and potential employers do a background check, they can see your conviction and the sex offender status.
Legal Defenses to Penal Code 288(a)
Facing charged for forced oral sex could be devastating. However, this is not the end for you. A top-notch criminal defense lawyer will help you deploy the following legal defenses for your case:
There Was Consent
Lack of consent from the other party is an element of crime required for oral copulation by fear. If you reasonably believed that the other party gave their permission to be involved in the act. Lack of consent can be complicated for a prosecutor to prove. Therefore, you will have a chance to fight these charges.
Relationships are complicated, and when things become sour, all sorts of accusations for sexual abuse could arise. A sexual partner can accuse you of forcing them into oral sex while attempting to revenge against you. If the only evidence available is testimony from the other person, you can claim that the allegations are false.
Most oral copulation charges are based on single witness allegations. Improper methods can be used to acquire testimonies to strengthen the charges. If your lawyer can establish that the confessions and evidence were obtained through inappropriate ways, the charges could be dismissed.
Lack of Enough Evidence
Oral sex rarely shows physical proof and does not cause injury to the victim. A person could falsely accuse you of the crime. If no third party witnessed the act, there might not be enough evidence of your involvement in the crime. Your attorney could investigate the case and convince the prosecutor to dismiss the case.
Frequently Asked Questions on Oral Copulation by Force
Using fear or force to engage in oral sex with another person is a severe offense in California. However, most people do not understand what it entails or actions that qualify under PC 288(a). For more information on this crime and its prosecution, you should consult a knowledgeable criminal defense attorney. Some frequently asked questions on this offense include:
What actions Entail Oral Sex by Force or Fear?
Illegal oral sex entails putting the mouth of an individual on the private parts of another person. For this crime, the genitals will include the sex organs on the anus. PC defines acts that qualify as non-consensual oral sex and outlines the punishment you will receive if you are convicted for this offense. The severity of the crime you commit under this statue is affected by:
- The age of the alleged victim, which is the younger person is considered. The younger the victim is, the more severe the penalties you will face after a conviction.
- The difference in age between the victim and the defendant is considered during sentencing.
- The nature of the circumstances surrounding the actions
- Whether or not the victim knew what was happening when the crime occurred
Will l be convicted if the alleged victim consented to the act?
Sometimes an individual could consent to participate in oral sex but change their mind and accuse you of using force or fear. When showing that you are guilty of this crime, the prosecution must prove that the oral sex was non-consensual. If the act in which you participated was mutual, you could present consent as a defense to your case. However, you should remember that individuals under eighteen years cannot consent for any form of sexual activity. Therefore, you cannot argue that a minor consented to oral sex.
Will the court mandate sex-offender registration for engaging in Oral sex using force?
Currently, a conviction for Oral Sex using force or fear in California subjects you to a lifetime sex offender registration. However, from 2021 the registration will be tiered, and you will register for ten, twenty years, or life depending on the severity of your crime. Some of the facts that will affect the severity of your offense is the involvement of multiple parties in the crime and knowledge of the victim on the actions.
Can I be convicted under CPC 288(a) if I am married to the alleged victim?
Yes. Being married to an individual does not give you the right to force them into sexual contact. Engaging in oral copulation is legal in California. However, it is a crime if the interaction was non-consensual between the involved parties regardless of their relationship status. If you coerce someone to engage in oral sex with you, you violate PC 288(a) and be convicted.
Offenses Related to PC 288(a)
Forced oral sex is a severe sex crime like many others in California. Some offenses are similar to this crime and could be charged in conjunction with or in place of CPC 288(a), including:
You commit a sexual battery crime when you touch another person's intimate body part against their will. PC 243.4 prohibits the unlawful restraining and touch of another person's private parts for sexual gratification. A prosecutor must show that the following occurred beyond a reasonable doubt before making a conviction;
- You are unlawfully restrained. You or a person you were working with restrained the alleged victim.
- You touched or forced the victim to touch you. The prosecutor must prove that you touched their intimate part while the victim was restrained or made them feel yours while the victim was restrained.
- The act was forced. For the prosecutor to establish that you are guilty of sexual battery, it should be proven that you touched the victim against their will.
- You acted with the intention of sexual gratification or abuse. When you face charges for sexual battery in California, the prosecutor must prove that you restrained the victim and touched them with the aim of sexual gratification, abuse, or arousal.
If you reasonably believed that the person gave their consent to participate in the act, you cannot be convicted for sexual battery. In California, the prosecution can charge you with a felony or misdemeanor sexual battery. The nature of your charges will depend on the specific factors of your case. When convicted of the misdemeanor, a defendant will face a one-year jail sentence or a fine of two hundred dollars.
For a felony conviction under CPC 243.4, you will face a prison sentence of four years or a fine of up to $10,000. Sometimes you could receive both the prison sentence and the penalties. Whether you are convicted for a misdemeanor or a felon sexual battery, you will be required to register as a sex offender. For both forms of sexual battery, your attorney could help you negotiate probation. Mostly, the court will offer probation as an alternative for jail time.
Sexual battery attracts less severe penalties than oral copulation. Therefore, you can try to have your CPC section 288(a) reduced to a sexual battery. However, you may also be charged with both offenses and receive combined punishment. By arguing that the victim consented to your touching or claiming that the accusations are not true, you can try to fight these changes.
Rape is sexual intercourse that is accomplished by threats or force. Also, having sexual intercourse with an unconscious, mentally challenged, or disabled person is a violation of PC 261. The specific elements of rape that the prosecution needs to prove in your case are:
- You participated in sexual intercourse with another individual. For you to be guilty of rape, the victim must have been alive when the sexual intercourse took place. CPC 261 defines sexual intercourse as any form of penetration of the vagina by the penis.
- You were not married at the time the event occurred.
- The other party did not consent the sex. Lack of consent is one of the most crucial elements that define rape. The prosecutor must establish that the victim did not consent to sex. However, it is vital to note that a minor cannot consent to sex. Also, an individual who is unconscious or severely intoxicated cannot legally give consent.
- The victim acted with menace, fear, threat, or fraud. You must have succeeded in engaging in sexual intercourse with the alleged victim using force, threat, or menace to be guilty of tape in California.
Rape is a violent crime and is always charged as a felony in California. When you are found guilty of the crime, you will need to attend formal sentencing. When force was not used to perpetrate the crime, you could face a one-year prison sentence. However, the use of violence elevates the punishment of up to 8 years in state prison. Additionally, the court will mandate a lifetime sex offender registration.
If the rape victim were a minor, you would face a prison sentence of up to thirteen years. Mostly, criminal charges for forced oral copulation are accompanied by rape. If you are convicted for both, you will face a severe sentence. Being accused of rape is one of the most devastating things that could happen to you. Therefore, guidance from an attorney will be essential.
Oral Copulation with a Child
It is illegal to participate in sexual activity with a child. Should you be found to have oral sex with a person who has not attained the age of eighteen, you will be charged under CPC 288(a). Before you can be convicted for this offense, these factors should be proven:
- You participated in oral sex. Oral sex under this statue required the genitals or anus of one person to contact the other person's mouth.
- The person with whom you engaged in oral sex was under 18 years. A minor has no legal right to consent to sexual activities. Oral sex with such an individual will attract criminal charges.
Engaging in oral copulation with a minor is a California wobbler. When you are convicted for a misdemeanor, you will face a one-year jail sentence and $1,000 in fines. A felony conviction for this crime attracts a penalty ranging from sixteen months to three years and $ 10,000 in court fines. You may also be subjected to formal or informal probation, depending on the nature of your conviction.
The severity of the penalties you face after a conviction Under CPC 288(a) depends on the age of the alleged victim:
- If the alleged victim is 16 years or older, and the defendant is younger than twenty, the offense could be charged as a felony or misdemeanor.
- Oral sex with a child below 16 years is a felony that is punishable by a three years prison sentence
- If the alleged victim is under 14 years, the maximum penalty will rise to 8 years in prison
Engaging in oral sex with a child requires all convicted defendants to register as sex offenders. The best way to defend yourself from oral sex with minor charges is by claiming that you reasonably believed that the victim was above 18 years. Also, you can argue that the accusation is false. Sex offenses against minors charged severely. Therefore, you need guidance from an attorney.
Find a Criminal Lawyer Near Me
Partaking in oral sex with an individual using violence or fear will have you arrested and charged with oral copulation by force or fear. You could also be charged with this offense for non-consensual oral sex with an intoxicated, unconscious, or disabled person.
Being convicted under PC 288(a) could be very devastating. This is because of the severe legal and personal consequences that follow this offense. Sometimes you may face additional charges for related crimes prolonging your stay in prison. When you are battling charges for a sex crime, it is crucial to have competent legal advice.
For questions on oral copulation by fear and to acquire legal representation, contact Orange County Criminal Lawyer. If you are in Orange County, CA, you will need us for representation. Contact us today at 714-262-4833 to discuss more details of your case.