In California, oral copulation by force or fear is a serious sex crime. Penal Code 288(a) states that oral copulation is unlawful if it was forced against a person's will, done to someone under the influence of alcohol and drugs, or a sleeping/unconscious person. Oral copulation or oral sex is not unlawful if there was prior consent. When facing oral copulation charges, you need an experienced criminal defense lawyer from Orange County Criminal Defense Attorney Law Firm to represent you.
Penal Code 288(a)
The statute describes oral copulation as the contact between your mouth and anus or sex organs of someone else. Oral copulation becomes illegal when the person is under 18, or there is a lack of consent. An individual under 18 years has no right to consenting to oral copulation with a person who is over 18 years.
The act becomes illegal when you engage with someone under 18 years. You did the act when the other person was intoxicated, or if you did the act when the other person was unconscious. For example, if the other party was under medication or sleeping, if you used violence, physical force, or threatened the other person when engaging in oral copulation. The penalties apply separately according to the nature of the act.
Elements of Oral Copulation by Force
The prosecution must prove beyond any reasonable doubt that you are guilty of oral copulation by fear or force by showing the following crime elements:
- That you did the act of Oral Copulation with another party
- That the other party didn’t give consent to the act
- That you committed the act by violence, menace, duress, force, fear of future threats of bodily injury, or immediate physical harm
Additionally, the prosecution will hold you liable for engaging in oral copulation with someone who is intoxicated, unconscious, or has a mental disability, to the extent that there was no consent for the act. A very intoxicated person is considered incapable of consenting to the act. You are criminally liable for aiding and abetting another person to engage in oral copulation even if you didn't commit it. Where oral copulation involves someone who is below the age of consent, it becomes unlawful. Someone below 18 years cannot give consent.
Consent in Oral Copulation
You must act voluntarily and freely and understand the nature of the act to consent to oral sex. Specific facts alone can't be enough to prove that the other party consented to oral copulation, such as where both parties had been married, and the aggrieved party requested you use a condom, or that both parties had dated or were dating. However, you might have reasonably believed that the other party had consented to the oral copulation act.
Without consent, any sexual act becomes criminal. Consent is crucial in law to determine whether the oral copulation act amounts to violating your free will. To engage in legal sexual activity, the involved parties must agree before acting. After you give out your consent to engage in oral copulation, you may not pursue charges for violation of your free will from the other party no matter how it is done.
If you are engaged in oral copulation with your free consent, and later on, you regret it, you may not sue the other party. However, if you engage in the act with an underage person, you are charged for violating the minor’s rights even if they consented to the act. Consent is only offered by over 18, and only if they were aware of the act, offered their free consent, and were not intoxicated, or unconscious, or physically or mentally challenged.
Oral Copulation with an Intoxicated Person
If you engage in oral copulation with an intoxicated person, you might face criminal charges. The prosecutor has the burden to prove two facts. That the other party was incapable of resisting as alcohol, drugs, or other intoxicating substances were used. The prosecution should also prove that you knew or could have reasonably known that the other party could not have consented to oral copulation because of intoxication.
A person is considered very intoxicated if unable to explain the act's physical nature and possible consequences. It also happens that many sexual encounters may occur when both or one party is intoxicated. An intoxicated person cannot consent to the act.
Oral Copulation with an Unconscious Person
To be held liable for engaging in oral copulation with an unconscious person, the prosecution must prove that the victim was unconscious during the crime commission. You also knew or should have reasonably understood that the other party was unconscious of the act and unable to resist. The aggrieved party doesn’t necessarily need to be unconscious but rather to have been ‘unconscious of the nature of the act.’ The aggrieved party could have been asleep or was unaware that the act would occur. It could as well mean that the other party was not aware of oral copulation and that you lied or tricked on what was happening.
Oral Copulation with a Physically Challenged Person
If you are involved in oral copulation with a physically or mentally challenged person, you can be convicted. The aggrieved party's disability should be the one that prevented the party from understanding the consequences and the nature of the act. You face criminal charges if you knew, or you should have reasonably known that disability prevented the aggrieved party from legally consenting to the act.
Penalties for Oral Copulation Violation
In California, unlawful oral copulation with a minor is a wobbler. This means you could be charged with either felony or misdemeanor and depending on your case’s circumstances and criminal history. If you are over 21 years and engage in oral copulation with someone below 16 years, you may be charged with a felony. Penalties for oral copulation by force to a minor is dependent on the ages of the parties involved.
Oral copulation by force amounts to felony violations and is punishable by a severe prison sentence. Besides, a strike conviction under the ‘three strikes’ law declares that you must serve your prison sentence to a minimum of 85% before you are eligible for release to parole if sentenced to prison. Oral copulation charges by force are severe, and only a criminal defense attorney would better handle the charges facing you.
The punishment for oral copulation by force depends on certain factors affecting the nature of the crime. They include the age of the aggrieved party, the age difference between the involved parties, whether it was a voluntary act or forced, whether there was a third party or parties who aided the act and whether the aggrieved party was unable to resist or was unaware of the act.
Oral copulation penalties apply differently in the various circumstances involved. The law details the instances as to whether the other party consented to engage in the act, the victim’s age, whether the act paved the way to bodily injury, and the extent of the physical injury. The penalties include:
- If you used threats, violence, or force to engage in oral copulation, you could be imprisoned for up to 8 years.
- If the aggrieved party is under 18 years, but not less than 16 years, you face imprisonment of up to one year.
- If the other individual is under 14 years, you could be imprisoned for up to 8 years.
- If you forced the crime to an individual under 14 years, you would risk imprisonment of up to 12 years.
- If you committed the crime by intoxicating the other party using controlled substances, you could be put to prison for up to 8 years.
- If you threatened the other party to engage in the act with arrest or deportation, you would face a punishment of up to 8 years in prison.
- And if you were involved in oral copulation with an individual who had a developmental disorder, a mental disorder, or physically disabled or could not consent to oral copulation, in that case, you might face imprisonment for up to one year.
Legal Defenses to Oral Copulation
An oral copulation defense attorney can help to have your charges dismissed or reduced. The attorney fights for your innocence. A conviction for oral copulation may result in registration as a sex offender in a lifetime, and it’s as bad as a fine or a jail term that is placed after conviction. As a sex offender, you may suffer social stigmas, which can be avoided if you used a defense attorney in your case.
It would be best if you don't speak to the law enforcers. The investigators might attempt to coerce you to admit that you committed the crime. It would be best if you didn't make statements to the police when under investigation on oral copulation. Politely decline to talk until your lawyer is present. The lawyer cautions you what to tell them, rest you incriminate yourself.
The following are defenses that an attorney can use against your charges:
Consent from the Other Party
Receiving consent from the other party before engaging in oral copulation saves you from facing criminal charges if the other party decides to sue you later. If the aggrieved party had consented to the act, an attorney works with you to retain your innocence. However, don't forget that an under 18 years person, an intoxicated person, or a person with a disability can't legally consent. Even if an under 18 consented and voluntarily participated in the act, you should note that the law does not recognize it.
Oral copulation by force might not always have physical evidence, especially when no bodily injury was sustained. Apart from the other party's statement, the prosecutor may not have any evidence to prove a criminal offense occurred. In such a situation, an experienced lawyer could defend your case in your favor.
It’s common for someone to be falsely accused. A false accuser could be a current or former lover most likely driven by jealousy or anger and retaliation. A defense attorney composes an evidential record to prove your case. In another instance, an intoxicated person can falsely accuse you. It is difficult for a drunk person to remember and explain the facts of the case vividly.
It can still happen that you were not physically present at the place the accuser describes that the crime occurred. It could as well be a situation of mistaken identity. When any of these allegations are laid against you, and it's a wrong accusation, speak to a defense attorney who will help restore your innocence. For false accusations, your lawyer needs to use investigation tools to obtain the truth.
Defense on Oral Copulation with a Minor
If possible, it can be proved that the accusation is false, or you reasonably believed the other party was over 18 years. If charged with a criminal act under 14 years, a minor mistake of age won't hold a valid legal defense. Evidence supporting the legal argument that you believed the other party was over 18 years is allowed if the victim’s appearance resembles an adult’s, you met in a bar, the other party told you their age, and the dress code resembled that of an adult. You didn't expect to meet an underage person in a bar. If the prosecution doesn’t offer sufficient proof, you can’t be convicted of the crime.
Myths in Oral Copulation Defenses
People reason out that previous history between the involved parties in the act may be used as a defense for oral copulation crime. It is, however, not so. Such invalid legal defenses are:
- Relationship evidence between you and the offended party. It doesn't constitute consent that you were married or dating at the time of the incident. You must provide consent before and during the act.
- That the other party was over 18 and consented to the act, in oral copulation by force, it’s not a valid defense claiming that the other party changed mind during the act. You should have consent throughout the act.
- Claiming there was no penetration can’t help you either. Oral copulation is about your mouth touching the other party’s sexual organ or anus.
- Being a minor at the time of oral copulation can’t save you from facing charges. Most people think that a minor can't be charged with the criminal act. You may be charged as a minor if the prosecution believes that you knew that oral copulation by force is illegal.
Oral Copulation Expungement
If you are convicted as a minor for oral copulation, you may have your conviction expunged. However, note that even if your conviction is expunged from your record, you still have to fulfill a sex offender’s responsibilities. You can be expunged under certain circumstances where you didn't serve your time in state prison after conviction, or you completed the probation successfully, or that you are currently not charged with a criminal offense. You aren’t serving a sentence or that you aren’t on probation for a criminal offense.
Statute of Limitations for Oral Copulation
Statute of limitations is a law that prescribes the time limit to prosecute for oral copulation by force. It's a particular time allowed by the law for a prosecuting agency to have commenced prosecution. If a criminal case is not filed during the statutory period, its prosecution will be barred. You are charged with the crime within the statute limitations, and if it expires legally, you can’t be accused of that crime. The statute limitations are for protecting the judicial process integrity.
The statute of limitations depends on the case-specific facts and the maximum penalty of the underlying crime. The period that first expires is the controlling time for the crime. With time, the evidence deteriorates, and witnesses' memories fade, making it hard for an individual to be convicted of a crime.
In misdemeanor oral copulation where the other party is a minor, you are charged within one year from the alleged incident date. The statute of limitations with a minor for felony oral copulation is more complicated. You are prosecuted before the minor's 28th birthday. However, the charges can be brought within a year later by the D.A. It means you can face criminal charges under the following circumstances:
- All eligible periods for limitation have expired.
- The allegation includes 'substantial sexual conduct' and, in this case, oral copulation by force.
- Independent information exists to corroborate the allegation.
The aggrieved party must produce convincing and clear evidence of the allegation. The evidence has to be admissible on trial and should not contain professionals' opinions for mental health. Criminal charges may be filed within one year since the oral copulation by force offense was committed.
There is the ‘DNA Exception Rule’ in the statute of limitations. It allows the aggrieved party to sue for a crime many years from the date of the crime. If your identity is exclusively identified through DNA testing, you still face criminal charges.
Registration of Sex Offender
The registry has three tiers, and they require different durations of registration. The law requires you to register with the police where you live and to renew the registration annually within five days of your birthday and whenever you move. These are:
- Tier 1: it requires registration of up to 10 years for sex offenders. Some felonies and misdemeanor oral copulation cases with a minor are in this category.
- Tier 2: Covers cases of oral copulation to minors below the age of 14, where you are over ten years, and no force was used. The registration is a minimum of 20 years.
- Tier 3: it's a lifetime registration. It covers all the situations where force was used during oral copulation and where the other party could not consent to the act. The offended party could either had been unconscious, intoxicated or was mentally or physically incapacitated.
You would not want conviction and charges that are more than what would be considered just. After the sentence of oral copulation, you should note that the repercussions last long beyond the prison sentence. Once a sex offender, you are required by the law to register with the federal organizations and with the state. The registered information is open to the public, and anybody, including your would-be spouse, employer, or community, has access to your information. You may be required to register for ten years or the rest of your life, depending on the severity of the crime.
Contact a Orange County Criminal Defense Attorney Near Me
If you face oral copulation or any other sex crime charges, speak to an expert lawyer. In some instances, if you had been previously convicted of Penal Code 288(a) violation, the aggrieved party may not go to trial, and you can be ordered to pay financial damages in court. All that is needed to overcome this is an experienced attorney from Orange County Criminal Defense Attorney Law Firm. Call us today at 714-740-7848 to speak with a criminal lawyer.