Oral copulation is the contact between your mouth and the genitals of another person. In California, using fear or physical violence to force another person into oral sex is an offense. Oral sex by use of fear is charged as a sexual offense that attracts severe penalties, including jail time and hefty fines. Also, you may be required to register as a sex offender. If you or your loved one is facing charges for forced oral sex, you will need competent legal representation. At The Los Angeles Criminal Defense Attorney, we work hard to ensure that you don’t face the legal consequences that accompany a conviction for this offense. We serve clients throughout Los Angeles, CA, to provide the best possible outcome for you in the case.
Legal Definition of Penal Code Section 288a of California Law
Oral copulation by fear occurs when you make contact between the sexual organs of an individual and the mouth area of another without consent. Also, the act should have taken place using fear or physical violence. You may get charged with oral copulation by force or fear for:
- Performing oral sex on an individual who is heavily intoxicated by alcohol or drugs and cannot give consent
- Oral copulation with an individual who is not in the right mental or physical state to give sexual consent
- Oral sex with an unconscious individual
Elements of Crime for Oral Copulation by Fear or Force
If you are charged with an offense of oral copulation by fear or force, you the prosecutor must prove the following elements of the crime beyond a reasonable doubt:
- There was Actual Oral sex
Under California law, oral copulation by contact of the mouth with the genitals of another individual. For this offense, the genitals include a penis and scrotum for men and vagina for women. No matter how slight the contact was, you can still get charged with this offense. Also, penetration is not required for a conviction to be made. Before you are convicted, the prosecutor must prove that contact was made.
- Lack of Consent
Oral copulation was not an offense when involved parties consented to the act. Lack of permission is an essential element when proving the occurrence of a sexual assault. For oral copulation to have agreed, an individual must act willingly and be aware of the act. It is essential to realize that even when a person agrees to oral copulation, they can withdraw their permission. If you continue with the action using force after consent withdrawal from the other party, you may still face criminal charges.
These facts are not enough to show how the victim agreed to oral sex:
- You and the alleged victim are married now or were married
- You were in a relationship with them
- The victim did request the use of protection
However, if there was a reason to believe that the victim gave consent, you will have a chance to fight oral copulation by force charges.
- Use of Force
It must be clear that the use of force was used for oral sex before you get convicted. For this offense, the use of fear and force can be manifested in the following ways:
- This is energy just enough to overcome the will of the other person
- Duress is a direct threat or danger which can compel a sensible person to agree to something they would otherwise oppose.
- Threatening statements or act portraying the intentions to harm another person
- Threatening retaliation when a victim fails to submit to the act. This could include the involvement of third parties to scare the victim.
Oral Copulation with an Unconscious Person
In California, you may get convicted under Penal Code 288a if you engage in oral sex with an unconscious person. Also, you should be aware that the individual could not resist the act for this reason. It is essential to understand that being unconscious will also apply to individuals who were asleep or did not know that the action was taking place. If you are charged with oral copulation by force, it would be wise to seek legal representation from a competent criminal defense attorney.
Oral Copulation with a Person who is Intoxicated
You will be charged and convicted under California Penal Code 288a for engaging in the act with a person who was too intoxicated to give consent. The prosecutor should also prove that you had a reason to believe that the victim was drunk. Since most sexual acts occur when involved individuals are intoxicated, the prosecutor needs to verify that the alleged victim did not understand the action in which they were participating.
Oral Copulation with a Disabled Individual
A defendant can be found guilty under California Penal Code 288a for performing oral sex with a person who is disabled. This could be a physical, developmental or mental disorder that prevents them from knowing what the act entails and consequences of their actions. It should be clear that you were aware of the disability at the time of action before you get convicted for this offense.
Legal Penalties for a Forced Oral Copulation Conviction
Oral copulation by fear or force is a serious offense in California. A conviction for this crime will attract both legal and social consequences. The severity of the legal repercussions will be dependent on the circumstances of the case and your criminal history. Also, the law will consider whether bodily injuries were resulting from the act and the seriousness of those injuries. Forced oral sex is a wobbler and can be charged as a felony or a misdemeanor. A crucial charge under California Penal Code 288a will require special attention from a criminal defense attorney. The following are penalties you may suffer after a conviction penal Code 288a:
- Felony probation. Felony probation is a sentence you are given instead of spending time in prison. If you are sentenced to felony probation, you can serve your sentence out of custody as long as you comply with probation conditions. If you are charged with oral sex by force or fear, you can get felony probation when the county probation department and the judge agreed. However, it is essential to understand that not all individuals are eligible for probation as an alternative to a prison sentence. You will only be subjected to felony probation after a conviction for oral copulation with a disabled person.
- Three, six or eight years prison sentence
- Fines that do not exceed ($10,000)
- A maximum of ten years prison sentence when the victim was between fourteen and eighteen years
- A prison sentence of up to twelve years if the victim was below fourteen years at the time the act took place
Committing an Offense under California Penal Code 288a in Concert
In concert means that you committed an offense together with other people. If you are convicted for this offense alongside other alleged offenders, you will face the following enhanced penalties:
- A five, seven or nine years prison sentence for orally copulating with a minor
- A twelve years prison sentence when the alleged victim was a minor aged fourteen years or older
- Ten to fourteen years when the victim was a child below the age of fourteen
You are likely to receive the penalty enhancement if you took part in oral copulation or you aided another person to commit the offense.
Registration as a Sex Offender in California
Oral use by the use of threats or physical violence is considered a sexual offense and is not taken lightly in California. A conviction under Penal Code 288a will attract both legal and personal consequences. This is because after the completion of jail time, probation, and paying fines, you will be required to register as a sex offender or a lifetime. As stipulated in the law, any individual who resides in the State of California and gets convicted for a sex offense should make a police registration. You will be required to renew the registration every year, and any other time you move to a different location. A lifetime sex offender registration will affect your personal and professional life.
A sex offender in California is expected to live under specific rules which limit their freedom. Living as a sex offender means that your status will be uploaded to the registry where your employer and other members of the public can access it. Most individuals will be reluctant to associate with a person who has a sexual offense conviction record. You will also be restricted from entering some areas such as parks if you were convicted for oral copulation with a minor. Finding employment and a place to stay may be quite difficult for a registered sex offender.
If you or your loved one is charged under the Penal Code 288a, it would be wise to enlist the help of a knowledgeable attorney. The attorney could help present a strong defense and avoid the severe consequences that accompany a conviction for this offense.
Strike Offense and Moral Turpitude
If the alleged victim in an oral copulation case is a minor, the crime will be a strike offense. A conviction for a strike offense will reduce your good conduct credit and enhance your criminal penalties. Also, a conviction under Penal Code 288a is a crime of moral turpitude and may trigger a suspension or revocation of your professional license.
Defenses against California Penal Code 288a
Getting arrested and convicted for using force to perform oral copulation can be devastating. This is due to the severe penalties you face and the negative consequences on your life. Fortunately, getting arrested does not always end in a conviction. There are available defenses you can present in an attempt to escape the severe legal penalties associated with the offense.
A competent criminal defense attorney can help you in convincing the prosecutor to reduce your charges or dismiss them by presenting any or all of these legal defenses:
Sexual acts are considered criminal offenses if there is no consent from one of the parties involved. Under California law, the presence of approval will help in determining if the act of oral copulation was violating another person’s free will. When one gives consent to participate in sexual activity, they cannot file charges against the other person. If you are facing criminal charges under California Penal Code 288a, you can present this as a defense.
Your attorney is required to show that the victim gave consent to participate in oral sex. However, it is crucial to understand that overly intoxicated people, unconscious and disabled people are not in a position to give their consent. Also, a person can only give consent if they are over the age of eighteen years. If the alleged victim was a minor, their approval does not count, and you may still get convicted.
Oral will rarely show physical evidence or produce injury on the victim. Sometimes a person may accuse you of a crime you did not commit. If there are no witnesses to the act, the prosecutor may not have enough evidence that you committed the crime. If your defense attorney can be able to investigate the facts of the case, they can convince the prosecutor that the case lacks sufficient evidence. A successful defense can get your charges reduced, or your case dismissed.
Relationships that have gone sour can produce false accusations for all sorts of sexual offenses. A former or current sexual partner can make false accusations of forced oral copulation and other sexual crimes in an attempt to take revenge or out of spite. When the prosecutor does not have any other proof except the word of the alleged victim, you can claim that it is a false accusation. Competent legal defense is required when presenting such an argument for your criminal case.
Mistake of Fact
Sometimes you may have had legitimate reasons to believe that the defendant gave their consent. This can occur when one party changes their mind about participating in the act and does not let the other one know. If the victim was over eighteen years, you might have a chance at fighting the criminal charges with this defense.
Coerced and Improper Confessions
Single witness testimonies support most oral copulation charges. Improper tactics may be used to gain testimonies and strengthen the case. If your attorney can prove that the evidence and confessions were obtained in inappropriate ways, they can be dismissed.
On some occasions, oral copulation happens between two people who are too intoxicated to remember. If you are intoxicated with alcohol or drugs, you lack the specific intent to commit oral sex by force. If you can show that your level of intoxication at the time of the act was too high, you are entitled to a verdict of not guilty under California Penal Code 288a.
Penal Code 288a Related Offenses
Oral copulation by fear or force is a serious offense, especially when involving minors or individuals who are not in a position to give consent. The following are some crimes that can be charged together with or in place of oral copulation by force in California:
- Oral copulation with a Minor
Under California law, a minor is anyone who has not attained eighteen years of age. Even when the minor gives consent to the act, you can be charged with this offense. This is because underage individuals cannot legally give consent to a sexual act. Oral sex with an underage person is a wobbler which can either get charged as a misdemeanor or a felony regarding specific circumstances of your case and your criminal history.
When charged as a felony oral copulation of a minor will attract a prison sentence between sixteen months and eight years. The length of your sentence will depend on your age and the age gap between you and the minor. In case you get charged with oral copulation by fear or force on a child. It is crucial to seek legal guidance. If the prosecutor lacks evidence to prove force or fear in the act, your charges may be reduced to a lesser offense which carries less stigma.
- Sexual Battery
Under California Penal Code 243.4 sexual battery is touching another person’s intimate parts without consent from them with the intention of gratification. You don’t need to perform the actual act of sex for you to be charged with sexual battery. The prosecutor needs to prove that you touched the alleged victim without consent. Also, it should be clear that you had a specific intent to sexually gratify yourself.
Sexual battery can be charged as a felony or a misdemeanor under different circumstances. When charged as a felony, sexual battery results in the following penalties:
- Up to six months of a jail sentence
- Fines not exceeding $3,000
- Mandatory informal probation where you will be required to complete community service and registration as a sex offender
On the other hand, a felony sexual battery conviction attracts:
- Felony probation
- Up to five years in the state prison
- Fines not exceeding $10,000
You may get charged with forced oral copulation as well as sexual battery. With competent legal defense, your penal code 288a charges can be dropped to sexual battery. If you or your loved one is charged with sexual battery alongside oral sex by force, you will serve penalties for both offenses. Therefore, it is essential to seek competent legal guidance when battling these charges.
Under California Penal Code 261, rape is non-consensual intercourse carried out through fraud force or threats. Unlike oral copulation, a prosecutor must prove that there was penetration to charge you for rape. It is essential to understand that you can be accused of rape, even whether the alleged victim was your partner. In many non-consensual sex charges, you will be charged with both rape and forced oral copulation.
Even when charged alongside oral copulation by force, rape is charged as a felony. A conviction for this offense attracts three, six or eight years in California State Prison. In some cases, you will be subjected to felony probation as an alternative to a prison sentence. However, you will only get probation if the following is true:
- You accomplished the act by pretending to be someone else
- You are guilty of rape since the defendant was disabled and incapable of consenting to the act
- You committed the crime by threatening to use an authority in public office to harm the victim
In addition to the penalties, you will face up to five years in prison if you caused great bodily injury to the victim during the act. A conviction for rape will also be a possible strike under California Three Strikes Law. If you are charged with rape alongside oral copulation by force, you may be required to register as a sex offender for a lifetime. This will cause social stigma and affect your chances of healthy relationships.
Given the penalties and stigma that accompanies a conviction under Penal Code 288a of California and related charges, it is crucial to fight the charges as aggressively as possible. A knowledgeable criminal defense attorney can help you avoid these penalties.
Find a Criminal Defense Attorney Near Me
Oral copulation by fear or force is a serious crime. A conviction for this offense will attract severe legal penalties and also affect your personal life. Sometimes a false accusation, mistaken identity or consent has gone wrong can get you charged illegitamitely. Fortunately, there are defenses you can present to help you fight these charges and receive a lesser penalty. If you or your loved one is charged under California Penal Code 288a, it is crucial to enlist the help of a criminal Defense Attorney. If you are in Los Angeles California, attorneys from The Los Angeles Criminal Defense Attorney have got you covered. Call us today at 310-564-2605 and allow us to take control of your case.