Oral copulation involves the contact between one person’s genitals or anus with another person’s mouth. Engaging in oral sex in California is legal. However, when you use force or fear to engage in oral copulation with a person that does not consent to the act, you will face an arrest and criminal charges for oral copulation by fear or force. A violation of PC 287(c) is a felony whose conviction attracts severe legal penalties. In addition to spending time in jail and paying hefty fines, the court may require you to register as a sex offender.
Sex offender registration is not only shameful but also a public record accessible by anyone who does a background check on you. Therefore, being on the sex offender registry will affect how people interact with you and your chances of securing meaningful employment. You should not take a criminal charge for forced oral copulation lightly. If you or your loved one faces an arrest under this statute, you will need legal guidance. At Michele Ferroni Pasadena Criminal Attorney Law Firm, we provide top-notch legal advice for all our clients battling PC 287(c) charges in Pasadena, CA.
What is Oral Copulation by Fear or Force?
You will not face legal repercussions if you agree to have oral sex with another person. However, like most sex crimes, the contact between your genitals and another person’s mouth violates California law if the other person does not consent to the act. Therefore, if you use force or fear to engage in oral copulation, you risk facing an arrest and conviction under California Penal Code 287(c).
Additionally, if you engage in oral sex with any of these individuals, you can face charges under this statute:
- Unconscious person,
- Disabled person
- Someone who is too intoxicated to give an informed consent
In California, prosecutors are aggressive when prosecuting sex crimes and aim to seek the most severe punishment under specific statutes. However, when proving your guilt for forced oral copulation, the following elements must be clear:
You Engaged in Oral Copulation
You cannot face a conviction under PC 287(c) if the evidence of your engagement in oral sex is not clear. Under this statute, oral sex constitutes the contact between one person’s genitals or anus with another person's mouth. Proof of sexual penetration is not necessary to secure a conviction under this statute. For men, the genitals mean the penis and scrotum, while for women, genitals include the vagina. Understanding that contact with the female breasts does not constitute oral copulation is essential.
The Alleged Victim Did Not Consent to the Act
Lack of consent is key to proving oral copulation by fear or force. When you agree to engage in oral sex with a partner or another person, you are not liable under PC 287(c). However, oral copulation is legal if both parties understand the nature and gravity of the act. When a person consents to oral sex with you, they can withdraw their consent in the middle of the act. If you fail to stop after the withdrawal of consent, you risk facing charges for forced oral copulation.
The following acts are not enough to prove consent to oral copulation:
- Being married to the alleged victim. California laws seek to protect every person from forced sexual acts. Therefore, you can face an arrest for forcing your spouse to engage in oral sex.
- The victim requested the use of protection.
However, when you reasonably believe that a person gave their consent, you can have a chance to fight these charges.
You Used Force or Fear to Engage in the Act
The prosecution must prove that you accomplished the act of oral copulation with the alleged victim by use of fear or force. There is a broad view of what constitutes “fear or force” under this statute:
- Force. Use of force involves the use of energy that is enough to overcome the other person’s will
- Duress. Duress is an implied or direct threat of force that would cause a person to engage in an act against their will
- Menace. Menace is a threatening statement aimed at making someone submit to a particular act
- Threat to directly injury someone or their families as retaliation for failure to submit to your demands
Engaging in Oral Sex with a Disabled Person
Like children, a person with a physical or mental disability cannot consent to sexual acts. You can only argue that the oral copulation was consensual if the other person understood the nature and consequences of the action. Therefore, you can face an arrest and charges for engaging in oral sex with a disabled person.
Oral Copulation with an Unconscious Individual
The court could hold you liable under CPC 287(c) if you engaged in oral sex with an unconscious person. You will face a conviction under these circumstances if:
- You engaged in oral sex with someone unconscious of the act’s nature. Being unconscious of an act means the person doesn’t realize it is happening. This could be a result of extreme exhaustion or falling asleep. Tricking a person to engage in oral sex will attract criminal charges under PC 287(c).
- You knew or should have known that the alleged victim’s unconsciousness made it impossible for them to consent to the act.
Oral Sex with an Intoxicated Individual
The court can find you guilty of forced oral copulation by engaging in the act with an intoxicated person. However, the prosecution will need to prove that:
- The alleged victim was incapable of consenting to the act due to their extreme intoxication
- You knew or should have known that the person was intoxicated, but you continued with the act
Under this statute, a person is considered too intoxicated if they cannot comprehend the physical nature of the act or its probable repercussions. Naturally, many sexual encounters occur when one or both parties are drunk. Therefore, whether the person could give consent or not is determined by the court.
Sentencing and punishment for Oral Copulation by Fear or Force in California
Forced oral copulation is a serious felony under California law. A conviction under this statute attracts severe legal and social consequences. The seriousness of the penalties you face for this offense varies depending on these factors:
- Your criminal history. California law seeks to severely punish individuals who continue to engage in illegal activities after prior convictions. If you have a history of sex offense convictions, the court will impose longer prison sentences and heftier fines.
- Specific circumstances of the case. While oral sex does not cause injury, if the use of force against the victim causes them significant injuries, you risk facing harsh penalties.
A conviction for oral sex by fear or force is punishable by:
- Three to eight years in state prison
- If the victim of your acts is a child under fourteen, you will face a maximum of twelve years.
- A maximum of ten years for engaging in oral sex with a person between fourteen and seventeen years
- Fines of up to $10,000
Felony Probation for Forced Oral Copulation
Felony probation is a sentence that California courts impose as an alternative to prison time. If you face probation, you can serve a significant part of your prison sentence through community service. Felony probation is not an option for all defendants. In agreement with the probation department and your lawyer, the district attorney decides to send you to probation. However, it is crucial to understand that you have the option to decline the probation sentence and serve your prison time. Felony probation lasts between three to five years and has strict conditions you must follow throughout the probationary period.
For example, if the court sentences you to a three-year prison sentence and you have an alternative to serving one year and five-year probation, you can decline the probation. Spending three years in prison has less commitment and allows you to move on with your life. Some of the probation conditions that the court could attach to your sentence include:
- Regular check-ins with your probation officer
- Restraining order to protect the alleged victim
- Payment of all fines and restitution
- Avoid engaging in further criminal conduct
Although a probation sentence saves you time behind bars, a violation of the terms could prompt the court to revoke the probation. When a judge revokes your probation, they can impose the original prison sentence or the maximum sentence for your crime. If you feel that probation best suits your needs, you should communicate with your attorney.
Violation of PC 287(c) in Concert
Committing the crime of forced oral copulation with other people or aiding a person to commit the crime is an aggravating factor. If you face a conviction for this offense alongside other defendants, the court increases your sentence by five to nine years for forced oral copulation and a minimum of twelve years when the victim is a child. If the child was under fourteen years at the time of the act, your sentence increases to fourteen years.
Sex Offender Registration after a PC 287(c) Conviction
The most severe and life-changing consequence of a PC 287(c0 conviction is the requirement to register as a sex offender. The Sex Offender Registration Act regulates the registration of sex offenders and stipulates the duration that you must remain in the registry. In California, sex offender registration has three tiers:
- Tier one requires an offender to register and renew the registration for a minimum of ten years. Offenses under tier one registration are less serious offenses like misdemeanor sexual battery, arranging to meet a child for lewd purposes, and child pornography.
- Tier two level crimes include incest, rape involving adults, and annoying a child. The minimum time for registration as a tier two sex offender is twenty years.
- Tier three sex offenses include lewd conduct with a child, kidnapping for sexual assault, and forced oral copulation, among others. If you face a conviction under PC 287(c), you must register as a sex offender for a lifetime.
As a sex offender, your social and professional relationships will be strained. The police will monitor your movements, and you must renew your registration upon moving to a new location. If a crime occurs within your area, the law enforcement officers will want you to come in for interrogations. Therefore, seeking legal guidance to battle forced oral copulation charges is critical.
Legal Defenses Against PC 287(c) Charges
The significant consequences accompanying a conviction for oral copulation by fear or force are life-changing. When you face an arrest and charges under this statute, you must seek the insight of a skilled sex crime attorney. Your attorney can help you explore a wide variety of defenses for the case, including:
Alleging oral copulation by fear or force does not require solid evidence to show that the crime occurred. Therefore, it is not uncommon for PC 287(c) charges to stem from false accusations. A former or current spouse can bring false accusations as retaliation for a negative relationship end or anger. Sometimes, bitter divorces and custody battles could motivate one parent to accuse another of a serious crime like forced oral sex to gain the upper hand in child custody rulings. With the guidance of a skilled attorney, you can bring to light the plan to falsely accuse you and avoid the conviction.
The Alleged Victim Consented
You are only guilty of forced oral copulation if the victim did not consent to the act. You can argue that you have a reason to believe the alleged victim consented. If the victim claims to have withdrawn the consent, you can argue that the withdrawal was not communicated effectively. The presence or lack of consent is a challenging element to prove, and it may come down to your testimony and that of the alleged victim.
Lack of Sufficient Evidence
Before you face a conviction for forcing someone to engage in oral sex, the prosecution team must prove all the elements of the crime beyond a reasonable doubt. Oral copulation rarely shows any physical signs of injuries. If your case is solely based on the victim's testimony, your attorney can help you argue that the incident did not occur.
Sealing a PC 287 Arrest
Even when you are found not guilty, or your case is dismissed, an arrest for forced oral copulation can significantly impact your life. If you are acquitted of the crime, California law allows you to petition the court to seal and destroy the arrest record. Arrests and criminal convictions are public records in California. A person who does your background check will discover the arrest, and their attitude towards you could change based on this discovery.
Before Senate Bill 393, it was difficult for someone to seal their arrest records in California. The court would require you to prove that there was no basis for the arrest, or the court dismissed your charges before you went to trial. After SB 2393, the only thing you must prove is that your arrest and charges did not end in a conviction.
You are eligible to seal your PC arrest if:
- The prosecution did not file charges following the arrest.
- The statute of limitations to file for the charge has elapsed
- The prosecutor filed the charges against you, but the court dismissed the charges
- The court found you not guilty after trial
- The judge at the court of appeal overturned your conviction.
A sealed arrest record does not appear on the background checks. Therefore, potential employers or landlords cannot use the arrest to deny you employment to a lease. Sealing an arrest record applies to the specific record. Therefore, your prior convictions will remain on the record. Additionally, sealing an arrest record does not lift the duty to register as a sex offender. If your name were in the sex offender registry before the arrest for forced oral copulation, you would still hold the sex offender status.
The statute of limitations for filing a record sealing is two years from the date of arrest. Sealing your record is lengthy and involves filing a petition and attending a hearing. Therefore, having the guidance of an attorney is vital.
Offenses Related to Oral Copulation by Fear or Force
Forced oral sex falls under the broad category of sex offenses in California. When you face charges under these statutes, the court may charge you with the following offenses together with or instead of PC 288a:
California PC 261 defines rape as nonconsensual sexual penetration accomplished through threats, violence, or fraud. If you engaged in forced oral sex and intercourse with another person, the prosecution could file charges under PC 287(c) and PC 261. Rape is one of the most serious sex offenses and has these elements:
- You engaged in sexual intercourse with another person
- You were not married to the person. If you engage in non-consensual sex with a person to whom you are married, the prosecutor will charge you with spousal rape under California PC 262.
- The other person did not consent to the act.
- You accomplished the act using force, threats, violence, or fraud
Rape is a felony punishable by a prison sentence of eight years. If you caused serious injury to the victim during the act, you risk facing an additional sentence of up to five years. Additionally, you must register as a sex offender.
2) Oral Copulation with a Child
A person under eighteen years cannot legally consent to sexual activities. Therefore, oral sex with a minor is an offense under PC 288a. If you face charges for forced oral copulation, the alleged victim's age will determine the specific offense you will be charged with. The prosecution must establish these elements when proving your liability under PC 288a:
- You participated in oral sex.
- The other person involved in the act was under eighteen years at the time of the act.
Violation of PC 288a is a wobbler. The penalties you face following a conviction for oral copulation with a child vary depending on your age and the victim's age. A felony conviction under this statute is punishable by a maximum of three years in prison and a $10,000 fine. On the other hand, a misdemeanor conviction attracts a one-year jail sentence, misdemeanor probation, and a maximum of $1,000 in fines.
3) Sexual Battery
California PC 243.4 prohibits the act of touching another person’s intimate parts without their consent for sexual gratification or arousal. If you face PC 287(c) charges and it is not clear that you touched the other person’s genitals with your mouth, the prosecution can charge you with sexual battery instead of forced oral copulation. The court will find you guilty if it is clear that:
- You touched an intimate part of another individual
- The person did not consent to the touching
- You acted with an intent to gratify yourself or arouse the person sexually
Sexual battery is punishable by a six months jail sentence for a misdemeanor and three years in prison for a felony.
Find a Competent Pasadena Criminal Defense Attorney Near Me
Engaging in oral sex with a person who does not consent or use fear or force to accomplish the act violates California Penal Code 287(c). Before you are found guilty of this offense, the prosecution will need to prove all the elements of the offense beyond a reasonable doubt. Unlike rape and other forms of sexual abuse, where there could be physical evidence to prove the acts, oral copulation does not leave injuries and is difficult to prove.
Therefore, it is common to fall victim to false allegations or mistakes of facts. Fortunately, your arrest under this statute does not have to end in a conviction. There is a wide variety of arguments that you can use to build a defense against the charges to avoid the consequences of a conviction.
If you or your loved one faces criminal charges for oral copulation by force or fear, it is paramount that you speak with a sex defense attorney. At Michele Ferroni Pasadena Criminal Attorney Law Firm, we have extensive knowledge and experience in successfully defending sex crime charges in Pasadena, CA. Our skilled attorneys will help you understand your charges and effective ways to fight them to secure a favorable outcome. Contact us today at 626-628-0564 to discuss more details of your case.