Engaging in oral sex is legal in California. However, it is against the law if the interaction between somebody’s mouth and another individual’s intimate parts is non-consensual. Whenever you force someone to engage in oral sex with you either by use of physical force or fear, you violate PC 288a oral copulation by force/fear. At the Leah Legal, we have highlighted the following information to help you understand how PC 288a applies in your situation.
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Understanding Oral Copulation by Force/Fear
California PC 288a defines oral copulation as when somebody’s mouth gets into contact with another person’s genitals or anus. By force or fear means that you engage in these actions without the consent of the other partner by application of violence, coercion, force, unlawful injury, or through fear and threats. The law can also apply in cases where the person involved is below the age of consent, which is 18 years or where the victim is too intoxicated to give consent. Also, you can face PC 288a charges where the victim is legally not in a position to give consent because of physical or mental disability.
It is critical to understand that the act can only be deemed as illegal where the victim had not given prior consent. But if your partner had previously agreed to the action, then it remains legal. The penalties for PC 288a violation depend on the age of the victim, bodily injuries involved, and an application of force or fear.
Elements of PC 288a
Whenever you are facing any charges, it is critical to understand that you are innocent until proven guilty. With that said, it is up to the prosecution to establish particular facts for them to convict you of the PC 288a violation. Some of these facts include:
- You Engaged in Oral Copulation with Someone Else
The prosecution should establish to the court that there was a creation of contact between a person’s mouth and another individual’s intimate part or anus. Keep in mind that it doesn’t count how slight the touch is between one individual’s genitals or anus and the other person’s mouth, you will still be guilty of this crime. Sexual penetration is not crucial in this case. An orgasm or ejaculation is also not important when proving a violation of PC 288a.
- You had No Consent from the Other Partner
Remember, just like in other sex crimes, the prosecution must prove there was no consent from the other partner. Approval means that the person you engaged in oral sex with acted freely or willingly and understood the essence of the act he or she was participating in. The judge will still consider oral sex as illegal if you initially had consent from the other person, but they later changed their mind or withdrew the consent. If you continued with the act after the withdrawal of consent, it would be considered a violation of PC 288a.
Note that you might be considered to have lacked consent from the victim even if:
- You and the victim were dating or dated
- You and the victim were married or had been married
- The victim requested you to put on a condom
All these three things don’t prove that you had consent from the victim, although it might appear so which is why you need an attorney.
- You Engaged in the Act by Use of Force or Fear
It is the role of the prosecutor also to demonstrate that you used some of the following things to engage in oral sex with the victim:
- You made use bare minimum force necessary to overcome the victim’s will
- You threatened to use power on the victim, and your actions would have made an average person do something they could not have otherwise done was it not for the threat
- You made threats or statements that would make the victim believe that you were going to inflict injuries on them
- You threatened the victim with illegal bodily injury
- You threatened the victim with retaliation if he or she did not engage in the act
Understanding Oral Copulation Involving an Intoxicated Person
Charges of PC 288a violation could be brought against you even if you didn’t use fear or force. It happens when you engage in oral sex with a partner who is:
- Unable to resist the act because he or she is intoxicated by drugs, alcohol, or any other substance that can cause intoxication
- You were aware or ought to have known that the victim could not have consented to the act because of the intoxication
Being convicted for oral copulation with an intoxicated person isn’t a walk in the park because many people who engage in sexual activities do it when partying or intoxicated. It makes it difficult to tell when someone is too intoxicated to give consent. PC 288a considers a person to be too drunk to give consent if the person is incapable of understanding or to weigh the real character or the act, an honest eccentric, and likely consequences.
Understanding Oral Copulation of an Unconscious Person
PC 288a violation also occurs when you engage in oral sex with someone insensible with the nature of the deed and when you knew or should have recognized that the individual is unable to resist the action because he or she is unconscious. In this case, the victim doesn’t need to be in actual unconsciousness. What is important is to show that the victim was unaware of what was happening or asleep. Also, where the victim isn’t aware of nature, the law assumes they were unconscious.
Oral Copulation and Disabled Persons
You are guilty of PC 288a violation when:
- You take part in oral sex with somebody who has a mental ailment, physical infirmity, or developing disability that impedes him or her from understanding the nature of the act and the likely consequences
- You recognized or must have realized that the mental incapacity by the victim would prevent him or her from consenting
Penalties for Penal Code 288a Violation
As said earlier, the law puts many things into consideration before they can decide on the sentences to impose. Some of these penalties include:
- Eight years of incarceration if you made use of force or violence to engage in oral sex with the victim
- As much as 364 days in jail if the victim of your actions is a minor but not younger than sixteen years
- Eight years’ prison sentence where the victim is below 14 years
- Up to 8 years sentence if you intoxicate the victim to engage in oral sex
- No more eight years’ imprisonment if you threatened the victim with deportation or arrest so that he or she can join in the act
- No more than 12 years in prison if you forced yourself on a victim under the age of 14
Note that if you aid an aggressor into committing this crime, you will also be subject to the same charges. It is referred to as oral copulation by force or fear in concert. So, if you were aided by another person to commit the crime or you in person committed the offense, you will be subject to enhanced penalties of:
- Five, seven or nine years’ prison sentence where the victim is a minor
- 8,10, or 12 years if the accuser is under the age of 18 but 14 years or above
- Ten, twelve, fourteen years in prison where the minor is below 14 years
Sex Offender Registration
As part of your punishment for violating Pc 288a, the judge might require you to register as a sex offender. PC 288a violation falls under the tier three system, which means you will have to register as a sex offender for life. Any sex offense convict is required to register with the local police then renew the registration after every single year within five days of his or her birthday or every time he or she moves to live in a new place.
Registering as a sex offender for life comes with a lot of stigma in society. Even if you change your residence, the requirement that you should renew the registration whenever you move means that even the people in your new locality will know of your conviction. It is the worst punishment that the judge can do to a person. The registration also means you cannot live in places close to where children meet like parks or schools. Additionally, you might not engage in events where kids are present. You will relinquish most of your constitutional rights after registering as a sex offender, so make sure you hire the best defense attorney to prevent a conviction.
Defenses for PC 288a
As seen above, the social stigma and other penalties that can with a conviction for violation of PC 288a can be life-changing. Because of that, you need a defense attorney that understands these consequences so that he or she can help you avoid these penalties in every way possible. With a solid defense, these charges can be dismissed or reduced. Some of the arguments that can apply when defending against PC 288a charges include:
- False Accusation
Remember, under PC 288a, no penetration or ejaculation is required. It means that it is easy for people to accuse others of oral copulation falsely. Cases of false accusations occur mostly among ex-spouses where one of the spouses is retaliating, jealous, or seeking vengeance against the other. If you have a profound defense attorney on your side, he or she will build substantial evidence to prove that the allegations against you have no basis.
Getting consent is essential when engaging in any sexual act. When you have permission from your partner, they have no right to file charges. Also, the lack of consent is a crucial element that the prosecution uses to prove you are guilty. Because of that, asserting that the victim had given permission or consented to engage in oral sex can aid in the charges being reduced or dismissed. Proving consent is not something easy because it is an allegation. Remember that the court will assume you had no permission if you engage in oral copulation with a minor, an intoxicated person, or a person who has a disability. This defense will, therefore, not hold if the victims are any of the categories of people mentioned above.
- Incomplete Evidence
PC 288a is very different from rape because there is no physical evidence. So, other than the allegations by the victim, the prosecuting party doesn’t have any other hard evidence to prove that the act occurred. In such a situation, your defense attorney can argue that the prosecution lacks sufficient evidence to convict you. He or she can support the assertion by providing private polygraph test results. Although they cannot be used as evidence in court, they will help convince the prosecuting party to accept that they have a weak case; hence they should drop it or lower the charges.
Note that if the victim consented to the act, then in the process did not want to continue, but didn’t withdraw consent, you can argue that you had approval. However, you must have reasonably believed that the victim had given you a go ahead with the act. There is a lot of vagueness that surrounds this defense because it is difficult to prove that the defendant had no consent.
Furthermore, some people engage in sexual relationships where consent is understood even if the other partner says no. The judge will have a hard time distinguishing what is legal or illegal among the acts.
Cases of PC 288a violation have many uncertainties, and at times caveats of the case can swing it in your favor or against you. However, what is essential to understand is that with the right criminal defense attorney, you can turn the case in your favor and avoid harsh punishments.
PC 288a and Related Offenses
PC 288a has many similar offenses that can be charged in place of or in conjunction with it. These are:
Oral Copulation on a Minor
PC 288a defines this crime. It makes it illegal to engage in oral copulation with a minor regardless of whether the act was consensual. If the under ages is intoxicated or has a mental disability making him or her legally incapable of giving consent, you will be facing a more severe offense of oral copulation by use of fear or force.
The offense is a wobbler if the minor is above 16 years, and you as the defendant is 21 years or below. Here, if you get a conviction for a misdemeanor, the punishment is as much as one year in jail. For a felony conviction, the penalty is 16, 24, or 36 months’ prison incarceration.
Where the victim is below 16 years, and the defendant is above 21 years, you will be facing felony charges. The potential penalties for a conviction are similar to those of a felony conviction above. Where the victim is under the age of fourteen, and the defendant is ten years older than the minor, the potential penalties increase to 36, 72, or 96 months in prison. The worst punishment for a conviction for this offense is registration as a sex offender. You will upload your personal information and the type of charge you were convicted for in the California Morgan’s Law Website. Anyone who needs to access this information can easily do it, which leads to social stigma.
You can, however, avoid these penalties by claiming that you reasonably believed the minor was over 18. The other argument you can make is claiming you are falsely accused.
PC 261 prohibits individuals from engaging in non-consensual sex by use of threats, force, or fraud. The offense is very similar to PC 288a, but they only differ because, in rape, there must be sexual intercourse. In cases involving sexual intercourse without consent, you will be subject to both PC 261 and PC 288a. The crime of rape in California is, in most cases, a felony that will subject you to prison incarceration for three, six, or eight years.
Under PC 243.4, it is an offense to touch someone else’s sexual or genital parts without their permission for sexual fulfillment, abuse, or arousal. The crime is also a wobbler, and a felony conviction carries penalties of as much as forty-eight months in prison. Compared to PC 288a, PC 243.4 carries lesser penalties. As such, when planning to take a plea deal, you can obtain the plea bargain using this charge. Again, keep in mind that you can be charged with both offenses at once.
Find a Los Angeles Criminal Defense Attorney Near Me
Whenever you find yourself facing charges of oral copulation by force/fear or other sex crimes, you need to speak to an attorney. A profound criminal defense attorney will help you understand your case, thus making informed decisions on how to proceed with the matter. If you have more questions regarding this crime and wish to speak to an attorney, call Leah Legal at 818-484-1100.