Oral Copulation FAQs – California Penal Code Section 288a
What is oral copulation?
According to California law, oral copulation is any contact, no matter how slight, between one person’s mouth and the sexual organ or anus of another person. Oral copulation does not require penetration.
California law states that oral copulation is illegal under the following circumstances:
- Oral copulation is performed against the victim’s will, and fear or force is used.
- Oral copulation is performed against the victim’s will, and threats of future retaliation are used.
- Oral copulation is performed against a victim incapable of legally consenting based on their age.
- Oral copulation is performed against a victim incapable of legally consenting because of a mental illness.
- Oral copulation is performed against a victim incapable of legally consenting because of a physical disability.
- Oral copulation is performed against a victim incapable of legally because they are unconscious.
Can I be charged with statutory rape for engaging in oral sex with a minor?
No. California statutory rape laws require that the victim and the perpetrator engage in sexual intercourse that involves penetration of the sexual organs. Therefore, engaging in oral sex with a minor will not lead to criminal liability under California Penal Code section 261.5, which is the statute that covers California statutory rape. However, if you have engaged in oral sex with a minor, you may be charged with an oral copulation offense under California Penal Code section 288a.
What if the victim told me they were over 18 years old? Can I use that as a defense against an oral copulation charge?
Having a good faith belief that the other person was over 18 years of age can be used as a defense in certain circumstances.
It can be used as a defense if you are charged under the following:
- Penal Code 288a(b)(1) – Oral copulation with a person under 18 years old.
- Penal Code 288a(b)(2) – Oral copulation with a person under 16 years of age while the defendant is at least 21 years of age.
This defense cannot be used when you are charged under Penal Code 288a(c)(1) – Oral copulation with a minor under 14 years of age.
What if we were in a relationship with each other? Can I use that as a defense against an unlawful oral copulation charge?
Being in a relationship with the other person is not a defense to an oral copulation charge. The other person must have consented and been legally able to consent. Under California law, a person must be at least 18 years of age to consent to oral copulation legally. Therefore, if the person was under 18 years of age and consented to oral copulation, you can still be charged and convicted of a crime.
What are the penalties for the crime of unlawful oral copulation in California?
Like statutory rape, unlawful oral copulation is considered a wobbler law, meaning it can be prosecuted as either a misdemeanor or a felony, depending on the situation.
If charged as a misdemeanor, a defendant convicted of unlawful oral copulation can face up to a year in county jail, up to $1,000 in fines, probation, or any combination thereof.
If charged as a felony, a defendant convicted of unlawful oral copulation can face up to eight years in county jail, up to $10,000 in fines, probation, or any combination thereof.
Will I have to register as a sex offender if I am convicted of committing the act of unlawful oral copulation with a person under 18 years old?
Committing an act of oral copulation with a person under 18 years old can, in certain circumstances, result in having to register as a sex offender. That is why it is essential to seek the help of an experienced sex crimes attorney if you or a loved one is charged with oral copulation with a minor.
What if I have been falsely accused of unlawful oral copulation?
Sadly, innocent people are falsely accused of sex crimes every day. A false accusation is usually the result of greed, jealousy, anger, or some other personal vendetta on the part of the accuser. In addition, people can sometimes be charged with a sex crime based on mistaken identity. If you’ve been falsely accused of unlawful oral copulation, hiring an experienced criminal defense attorney with experience in sex crime cases is your best course of action.
Call the unlawful oral copulation attorneys at Wallin & Klarich today.
If you or a loved one is facing unlawful oral copulation charges, you must speak with an experienced sex crime attorney right away. At Wallin & Klarich, our attorneys have over 40 years of experience successfully defending sex crimes cases.
With offices in Orange County, Los Angeles, San Diego, Riverside, San Bernardino,Ventura, Victorville, West Covina, Torrance, and Sherman Oaks, our experienced team has helped many of our clients avoid being put on the sex offender registry. If you have already been convicted of a sex crime, we can also assist you in relieving you of your lifetime duty to register as a sex offender.
Call us today at 877-4-NO-JAIL.
We will get through this together.
