Oral Copulation by Force/Fear (PC 288a)

What is Penal Code 288a (Oral Copulation by Force or Fear)?

California prohibits “oral copulation by force or fear” which state law defines as non-consensual contact between one person’s mouth and another person’s genitals or anus.  This is codified in California Penal Code 288(a) and is classified as a sex crime.  Depending on the specific circumstances of your case, Penal Code 288(a) may be a felony or a misdemeanor.

Legal Definition of Penal Code 288(a)

In order to be convicted of Penal Code 288(a), the prosecutor needs to prove certain facts.  In the legal world, these facts are called “elements.”  If a prosecutor cannot prove all the elements of Penal Code 288(a), then you cannot be proven guilty in a jury trial.  The elements of Penal Code 288(a) are:

  1. Creating any contact between the mouth of one person and sexual organ or anus of another;
  2. Without the other person’s consent;
  3. Through the use of force, violence, duress, menace, fear of immediate and unlawful bodily injury to someone, or a threat to retaliate against someone.

Additionally, you could be held criminally liable under Penal Code 288(a) for participating in oral copulation with

  • Someone who is intoxicated to the point that they cannot resist your advances
  • Someone who is unconscious
  • Someone who has a mental or physical disability such that they are unable legally consent to the oral copulation act.

Let’s examine each of the elements more closely so you have a better idea of the potential criminal liability.

The Act of Oral Copulation

Penal Code 288(a) PC defines oral copulation as any contact – no matter how small or slight – between the sex organ or anus of one person with the mouth of another person. For a man, this includes both the penis and the scrotum.  Under Penal Code 288(a), sexual penetration is not required.

Force or Fear

California courts take a broad view of what constitutes “oral copulation by force or fear.”  Any of the following constitutes “force or fear” under Penal Code 288(a):

  • Force: Penal Code 288(a) only requires the bare minimum of force necessary to overcome the other person’s will.
  • Duress: A Penal Code 288(a) violation can occur even through the threat of force. Actual force is not necessary.  The threat can be direct or implied.  The key is whether or not your actions would cause a reasonable person to do something they would not otherwise normally do.
  • Menace: making a threat, statement, or act that shows intent to injure the victim.
  • Threat of immediate and unlawful bodily injury
  • A threat of retaliation if the victim does not submit to your demands: This may include kidnapping, inflicting severe pain, or even threatening to kill the alleged victim or third party.

Oral Copulation involving an Intoxicated Person

You may be guilty of a Penal Code 288(a) violation if you commit an act of oral copulation with another person who is intoxicated.  For this to happen, the prosecutor must prove two separate facts.  First, that the other person was incapable of resisting because they used drugs, alcohol, or other intoxicating substances.  Second, you knew or reasonably should have known that they could not have consented because of their intoxication.

Under Penal Code 288(a), a person is considered too intoxicated to provide consent if they are unable to understand the physical nature of the oral copulation act and the possible consequences.  Naturally, there is a lot of grey area, which is further complicated by the fact that many sexual encounters occur while one or both parties are intoxicated.

Committing an Act of Oral Copulation with an Unconscious Person.

You may be liable under Penal Code 288(a) if you committed an act of oral copulation with an unconscious person.  For this specific offense to occur under Penal Code section 288(a), the following must be true:

  1. You engaged in an act of oral sex with someone who is unconscious of the nature of the act.
  2. You know or reasonably should have known that the alleged victim is unable to resist due to their unconsciousness.

For Penal Code 288(a) to apply, the alleged victim does not need to be actually unconscious.  Rather, they only have to be “unconscious of the nature of the act.”  This means that they can be asleep or unaware that the act is occurring.  Furthermore, it could also mean that the alleged victim is not aware of the nature of the act because they were tricked or lied to about what was happening.

Oral Copulation with a Disabled Person

You could be convicted with a Penal Code 288(a) violation if you commit an act of oral copulation with a mentally or physically disabled person.  The alleged victim’s disability must be one that prevents them from understanding the nature and consequences of the oral copulation act.  Additionally, you can only be convicted of a Penal Code 288(a) violation if you knew or reasonably should have known that the disability would have prevented the alleged victim from being able to legally consent.

What are the potential penalties for Penal Code 288a?

Penal Code 288(a) is classified as a felony.  If convicted of Penal Code 288 oral copulation, you could receive up to 8 years in a California state prison.  This sentence could go up if the alleged victim is a minor under the age of 18.  If the alleged victim is between the ages of 14-18, then you could receive up to 10 years in prison.  If the victim is under the age of 14, then you could receive up to 12 years in prison.

In addition, if convicted of Penal Code 288a, you could also receive formal probation and a fine of up to $10,000

Penalties for committing an act of oral copulation by force or fear in concert.

The potential penalties for a Penal Code 288(a) violation increase if they occurred “in concert” with another person.  You are criminally liable under Penal Code 288(a) if you were personally involved in the act of oral copulation.  But you can also be criminally liable under Penal Code 288(a) if you did not directly participate in the act of oral copulation but merely aided and abetted another person in doing so.

The potential penalties for committing a Penal Code 288a violation “in concert” includes up to 9 years in a California State prison if the alleged victim is over the age of 18 years.  If the victim is between the ages of 14-18, then the potential prison sentence goes up to 12 years.  If the alleged victim is under the age of 14, the potential sentence goes up to 14 years.

Sex Offender Registration

A Penal Code 288a conviction will subject you to California’s sex offender registry laws.  Specifically, a Penal Code 288a conviction would require you to register as a tier three offender for your entire life.

California’s sex offender registry laws require sex offenders to register with the police department in the city or county where they live.  You will have to renew this registration every five years or every time you move to a residence. 

Beyond the registration requirement, status as a sex offender can carry significant social stigma that rivals any pain and punishment that could be received with a prison sentence.

What are legal defenses to Penal Code 288a?

The significant punishments attached to Penal Code 288a conviction can lead to a lifetime of trouble and pain.  Fortunately, there are a variety of legal defenses available to a Penal Code 288a charge.  An experienced and diligent criminal defense attorney can review the specific circumstances of your case and then design the most effective strategy for your situation.  The potential legal defenses to your Penal Code 288a charge include, but are not limited to, the following:

  • Falsely Accused: Penal Code 288 is similar to other sex crimes in the sense that it is not uncommon for defendants to face false accusations from an accuser.  These false accusers might be a former or current lover who is driven to make such accusations because they are angry or jealous.  A thorough defense attorney can build up the evidential record in your favor to help reveal the truth.

  • There was Consent: As discussed above, lack of consent is one of the elements that a prosecutor must prove in order to convict you of a Penal Code 288a violation. The issue of consent is often steeped in ambiguity.  Many Penal Code 288a cases are surrounded by the question of whether or not the victim actually consented and whether or not the defendant should have reasonably believed that the alleged victim did consent.   These types of cases tend to devolve into “he said/she said” type situations.  For this reason, it may be hard for a prosecutor to prove lack of consent beyond a reasonable doubt.

  • Insufficient Evidence: Similar to other sex crimes, Penal Code 288(a) oral copulation by force or fear cases often turn into a “he said/she said” situation. Many cases are founded on zero physical evidence and entirely on the accusations of the alleged victim.  In these types of situations, a thorough criminal defense attorney can use an array of evidentiary tools to build a case in your favor. 

Related Crimes to Penal Code 288a

California maintains a series of laws similar to Penal Code 288a oral copulation by force or fear.  These offenses can often be charged instead of or in conjunction with Penal Code 288a.

Penal Code 288a Oral Copulation on a Minor

You can face criminal liability if you commit an act of oral copulation with a minor even if the act was “consensual” or done without force or fear.  This is because a minor cannot legally consent to a sexual act with an adult.

This form of Penal Code 288a oral copulation is classified as a wobbler.  This means that the prosecutor has the discretion to charge you with a felony or a misdemeanor.  This decision is made based on the specific circumstances of the crime and your criminal history.

In some cases, oral copulation with a minor may be an automatic felony.  For example, if you are over 21 and the alleged victim is under the age of 16, then California law mandates you be charged with a felony.  If this is the case, you could face up to 8 years in prison. 

Penal Code 261 Rape

Rape, under the Penal Code 261, is defined as nonconsensual sexual intercourse achieved through threats, force, or fraud.  The definition is similar to Penal Code 288(a) oral copulation by force or fear.  The main difference is that the sexual act is intercourse as opposed to oral sex. 

It is not uncommon for a defendant to be charged with Penal Code 261 rape and Penal Code 288a oral copulation by force and fear at the same time because these acts often go hand in hand during the commission of sex.  If convicted with Penal Code 261 rape, you would receive a felony and up to 8 years in prison.

Penal Code 243.4 Sexual Battery

You could be guilty of a Penal Code 243.4 sexual battery violation if you touch another person’s sexual organs without their consent for the purpose of sexual gratification, arousal, or abuse.  Penal Code 243.4 is classified as a wobbler with the felony carrying up to 4 years in prison.  Penal Code 243.4 carries significantly less potential penalties than Penal Code 288(a).  Thus, it may be advantageous to obtain a plea bargain to this charge.  However, it is possible to be charged with both crimes at the same time.

Civil Liability and Penal Code 288a Oral Copulation by Force or Fear

In California, victims have the ability to sue for oral copulation by force or fear.  This is the case for all forms of sexual assault.  For the victim to sue, it is not necessary that you be convicted of a Penal Code 288a violation or even be charged with one.  In California, if the victim can prove beyond a preponderance of the evidence that the act occurred, you could be held civilly liable.  In other words, as long as the evidence suggests that it was more likely than not the crime occurred, you could face civil liabilities in the form of massive financial damages.

In some cases, if you were previously convicted of a Penal Code 288(a) violation, the victim may not even have to go to trial and you could be automatically subject to financial damages in civil court.  This is because there is a higher standard of proof in criminal courts.

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