Oral Copulation Prosecution – California Penal Code Section 288a

Oral Copulation With Person Under 18 – California Penal Code Section 288a(b)(1)

To prove that the defendant is guilty of oral copulation with a person under 18 years of age, the prosecution must prove that:

  1. The defendant participated in an act of oral copulation with another person; AND
  2. The other person was under the age of 18 when the act was committed.

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.

Under the law, a person becomes one year older as soon as the first minute of his or her birthday has begun.

Oral copulation With Minor: Defendant 21 or Older – California Penal Code Section 288a(b)(2)

To prove that the defendant, while 21 years of age or older, is guilty of oral copulation with a minor, the prosecution must prove that:

  1. The defendant participated in an act of oral copulation with another person;
  2. The defendant was at least 21 years old at the time of the act; AND
  3. The other person was under the age of 16 years at the time of the act.

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.

Under the law, a person becomes one year older as soon as the first minute of his or her birthday has begun.

Oral copulation With Person Under 14 – Penal Code Section 288a(c)(1)

To prove that the defendant is guilty of oral copulation with a person under 14 years of age, the prosecution must prove that:

  1. The defendant participated in an act of oral copulation with another person; AND
  2. At the time of the act, the other person was under the age of 14 and was at least 10 years younger than the defendant.

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.

Under the law, a person becomes one year older as soon as the first minute of his or her birthday has begun.

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:
    • Force, violence, duress, menace, or fear of immediate and unlawful bodily injury to someone;
    • Threatening to retaliate against someone when there was a reasonable possibility that the threat would be carried out; OR
    • 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.

Call Wallin & Klarich Today

If you or a loved one is facing a sex offense, it is critical that you 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, we have been able to help 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 be there when you call.

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