Oral copulation Defenses – California Penal Code Section 288a

There are a number of defenses to a charge of oral copulation.  Below are a few defenses to consider.  However, it is important that you speak with an experienced sex crimes attorney who can look at the specific facts of your case to apply the best defenses.

Good Faith Belief 18 or Over
For charges under Section 288a(b)(1) and 288a(b)(2), having a good faith belief that the other person was at least 18 years old.  You will be found not guilty if you reasonably and actually believed that the other person was age 18 or older.

The prosecution must prove beyond a reasonable doubt that the defendant did not reasonably and actually believe that the other person was at least 18 years old. If the prosecution has not met this burden, you will be found not guilty.

This defense is not available if you are charged with oral copulation with a minor under the age of 14, under Section 288a(c)(1).

Consent as a Defense
It is generally not a defense that the other person may have consented to the act.  However, if you are charged with oral copulation by force, under Section 288a(c)(2) & (3), (k), you may use consent as a defense to forcible oral copulation if you actually and reasonably believed that the other person consented to the act.

The prosecution must prove beyond a reasonable doubt that you did not actually and reasonably believe that the person consented. If the prosecution has not met this burden, you must find the defendant not guilty.

Did Not Commit the Act of Oral copulation
Oral copulation is any contact, no matter how slight, between the mouth of one person and the sexual organ or anus of another person. If your mouth did not touch the sexual organ or anus of another person, you can use this as a defense.

Other Person Consented
If the other person consented, you can use this as a defense if you are being charged with oral copulation by force or fear under PC 288a(c)(2) & (3), (k).  However, the person must be legally able to consent, which means the person must be at least 18 years of age.

Not Defenses

Evidence of a relationship NOT a Defense to Oral copulation by Force – California Penal Code Section 288a(c)(2) & (3), (k)
Evidence that the defendant and the person (dated/were married/had been married) is not enough by itself to constitute consent.

Evidence that Person Wanted to Use Protection NOT a Defense to Oral copulation by Force – California Penal Code Section 288a(c)(2) & (3), (k)
Evidence that the person (requested/suggested/communicated) that the defendant used a condom or other birth control device is not enough by itself to constitute consent.