Oral copulation by Force, Fear, or Threats – California Penal Code Section 288a(c)(2) & (3), (k)

To prove that the defendant is guilty of oral copulation by force, fear, or threats, the prosecution must prove that:

1.    The defendant committed an act of oral copulation with someone else;
2.    The other person did not consent to the act;
AND
3.    The defendant accomplished the act by
i.    Force, violence, duress, menace, or fear of immediate and unlawful bodily injury to someone.
ii.    Threatening to retaliate against someone when there was a reasonable possibility that the threat would be carried out.
OR
iii.    Threatening to use the authority of a public office to incarcerate, arrest, or deport someone.

A threat to retaliate is a threat to kidnap, unlawfully restrain or confine, or inflict extreme pain, serious bodily injury, or death.

A public official is a person employed by a government agency who has the authority to incarcerate, arrest, or deport. The other person must have reasonably believed that the defendant was a public official even if (he/she) was not.

Oral copulation is any contact, no matter how slight, between the mouth of one person and the sexual organ or anus of another person. Penetration is not required.

In order to consent, a person must act freely and voluntarily and know the nature of the act.

An act is accomplished by force if a person uses enough physical force to overcome the other person’s will.

Duress means a direct or implied threat of force, violence, danger, hardship, or retribution that causes a reasonable person to do [or submit to] something that he or she would not otherwise do [or submit to]. When deciding whether the act was accomplished by duress, consider all the circumstances, including the age of the other person and (his/her) relationship to the defendant.

Menace means a threat, statement, or act showing an intent to injure someone.

An act is accomplished by fear if the other person is actually and reasonably afraid [or (he/she) is actually but unreasonably afraid and the defendant knows of (his/her) fear and takes advantage of it].