Penal Code 287 addresses oral copulation by force or fear. Per the statute, the crime involves engaging in non-consensual oral sexual activity with another person through physical force, the threat of harm, or fear to coerce the victim's participation.

Consent is pivotal in all sexual activities, including oral sex. Prosecutors take these cases seriously due to the harm inflicted on victims. They aggressively prosecute individuals facing these allegations, aiming to secure a conviction.

You need legal representation to safeguard your rights and put in place a robust defense when facing these charges. The Bakersfield team at California Criminal Lawyer Group is ready to assist.

Oral Copulation By Force/Fear Under California Law

The legal definition of oral copulation by force or fear under Penal Code 287 is straightforward:

  1. It pertains to any contact between your mouth and the sexual organ or anus of another person, as defined by the law as "oral copulation."
  2. This act must occur without the explicit consent of the other party involved.
  3. It constitutes a criminal offense if achieved through force, violence, duress, menace, instilling immediate fear of unlawful bodily harm to any person, or threatening to retaliate against someone.

Furthermore, you could be subject to charges under Penal Code 287 PC if you engage in the following actions:

  1. If you participate in oral copulation with a person who is unconscious and, consequently, unaware of the nature of the act being committed,
  2. If you engage in oral copulation with an incapacitated individual due to intoxication, they cannot resist.
  3. If you engage in oral copulation with an individual who lacks the legal capacity to provide consent due to a mental disorder or a developmental or physical disability,

The law requires prosecutors to prove their case. Therefore, there are specific elements prosecutors must establish as true for a jury or the court to convict you. Let us look at the elements in each situation in more detail.

  • Oral Copulation Achieved Through Force or Fear

Oral copulation through fear or force involves the following:

  1. Any contact between one person's mouth and another person's sexual organ or anus is legally defined as "oral copulation."
  2. This contact occurs without the explicit consent of the other person involved.
  3. It becomes a crime when executed through duress, force, menace, violence, instilling immediate fear of unlawful bodily injury to someone, or issuing a threat to retaliate against someone.

Furthermore, charges under Penal Code 287 PC could apply if you:

  1. Engage in oral copulation with a person who is too intoxicated to resist.
  2. Perform oral copulation on a person who is unconscious and thus unaware of the nature of the act.
  3. Commit oral copulation with a person who cannot legally consent due to a mental disorder, developmental disability, or physical disability.

Oral Copulation

Any contact, regardless of how slight, between one person's mouth and another person's sexual organ or anus constitutes oral copulation. Penetration is not necessary for this contact to be considered a crime.

Moreover, "sexual organ" generally includes both male and female genitalia. It includes the penis for males and the scrotum, anatomically associated with the male genitalia.

Lack of Consent

Lack of consent signifies that all or any party involved has not unequivocally and willingly consented to participate in a specific sexual act.

When granting consent for oral sex, two pivotal criteria come into play:

  1. It must be given voluntarily and without coercion.
  2. The individual must possess a complete understanding of the nature of the act.

Crucially, an individual retains the right to withdraw their consent at any point during a sexual encounter, even if he/she had initially granted consent. Consent remains an ongoing process that can be altered or retracted should:

  1. Someone feel uneasy,
  2. No longer desire participation in a specific activity or
  3. For any other valid rationale.

In some cases, isolated circumstances alone will not suffice to establish the genuine consent of the alleged victim regarding oral copulation, per California law. These situations include:

  1. A current or past marital connection between you and the victim.
  2. A prior dating relationship or history between you and the victim.
  3. A request from the victim for you to use a condom.

However, if you held a genuine and reasonable belief that the alleged victim had consented to the sexual act, you are not guilty under California Penal Code 287. In simpler terms, a sincere and rational perception of consent can serve as a legal defense against charges related to oral copulation by force or fear.

Use of Fear or Force

In oral copulation and sexual offenses, specific terms have significant legal implications:

  1. Force — This involves using physical strength or coercion to compel someone into oral copulation against his/her will. It relies on physical actions that overwhelm the person's resistance.
  2. Menace — It involves threats, intimidation, or actions that induce a reasonable fear of harm or injury, effectively pressuring a person to engage in oral copulation against their desires. The dread of potential repercussions coerces the victim.
  3. Fear of retaliation — This fear emerges when the perpetrator threatens harm or adverse actions against the victim or those close to them if they decline to engage in oral copulation. It enforces compliance through the worry of potential harm or consequences.
  4. Duress — Under this, the victim is compelled to engage in oral copulation due to psychological or emotional pressure. This renders them incapable of freely and voluntarily giving consent.
  5. Violence — It is the use of physical harm or the threat of immediate bodily injury to coerce someone into engaging in oral copulation. It could include actions like physical assault, striking, or any form of physical aggression.
  6. Threat to inflict bodily harm — This involves explicit threats by the perpetrator to cause physical harm or injury to the victim unless they comply with the demand for oral copulation. It fosters an environment of fear and coercion.

  • Oral Copulation of Intoxicated Individuals

Engaging in oral copulation can result in criminal charges under Penal Code 287 PC if two conditions are met:

  1. The other person cannot resist due to the influence of alcohol, drugs, or another intoxicating substance.
  2. You either knew or reasonably should have known that the person could not provide consent due to their level of intoxication.

These circumstances can introduce legal gray areas because many sexual encounters involve some degree of intoxication. However, the law establishes criteria to determine when someone is too intoxicated to give valid consent under Penal Code 287 PC. Specifically, a person is considered unable to consent if they cannot:

  1. Understand the physical nature of the sexual act.
  2. Anticipate the likely consequences of engaging in the act.
  3. Assess the moral character of the act.

Note: Valid consent must be freely given, well-informed, and voluntary.

  • Oral Copulation of Unconscious Victims

Under Penal Code Section 287, you can face charges if the following conditions are satisfied:

  1. You engaged in oral sex with someone who was not aware of the nature of the act.
  2. You knew the victim could not resist due to their lack of awareness.

The victim does not necessarily have to be physically unconscious for this law to be applicable. "Unconscious of the nature of the act" can include various scenarios, including:

  1. The victim is asleep or physically unconscious.
  2. The victim is unaware that a sexual act is occurring.
  3. The victim lacks an understanding of the essential aspects of the act because you deceived them, provided false information, or concealed vital details from them.

  • Oral Copulation of Disabled Individuals

Engaging in oral copulation by force or fear can lead to potential charges if you do the following:

  1. Engage in oral copulation with an individual with a developmental disability, mental disorder, or physical disability that prevents them from understanding the nature and potential consequences of the act.
  2. Know or reasonably should have known that the other person's disorder or disability would make it impossible for them to legally provide consent.

  • Oral Copulation With a Minor

In cases of oral copulation with a minor, prosecutors generally need to establish two critical elements beyond a reasonable doubt:

  1. You engaged in an act of "oral copulation" with another person.
  2. The other person was a minor (under the age of 18) at the time this act occurred.

If the defendant in a case involving oral copulation with a minor is also a minor, the legal proceedings will be held in juvenile court. Juvenile courts specialize in handling matters concerning individuals below the age of majority (18 years old).

  • Oral Copulation By Pretending to be a Public Official

Engaging in oral copulation while falsely posing as a public official is a criminal offense. This crime relies on falsely portraying oneself as a public authority figure and using threats to coerce the victim into engaging in oral copulation.

Prosecutors must prove the following:

  1. Your involvement in oral copulation with another person — Oral copulation involves contact between your mouth and another person's sexual organ, or anus.
  2. You deceitfully presented yourself as a public official during the act — This misleading representation often involves threats implying the authority of a public official, for example, the ability to incarcerate, arrest, or deport the victim or another individual.
  3. The victim must have reasonably believed that you held the status of a public official due to your false representation. This belief forms a critical aspect of the offense.
  4. The victim did not consent to the act.
  5. You used threats or coercive actions associated with your deceptive portrayal as a public official.
  6. You intended to deceive the victim into believing you were genuinely a public official through deceit, pretense, or concealment.

Defenses You Can Use in Oral Copulation Cases

Engage the California Criminal Lawyer Group should you face oral copulation charges. Our Bakersfield attorneys will assess your case and settle on the best defense based on the circumstances of your case. Here is a look at some common defenses used to challenge PC 287 violation charges.

The Alleged Victim Consented

In numerous cases involving allegations of sexual offenses, there often arises significant uncertainty surrounding whether the alleged "victim" truly consented. If you held a reasonable belief that the alleged victim consented to the act, this belief could serve as a valid defense. This underscores understanding the intricacies of consent and acknowledging the weight of an individual's perception and willingness in such circumstances.

Many cases essentially boil down to conflicting accounts, frequently characterized as "he said/she said" allegations. In these scenarios, the court must scrutinize the evidence and assess the parties' credibility to reach a just and equitable verdict.

Nevertheless, consent cannot be invoked as a defense when the alleged victim is a minor. In cases involving children, the law generally does not recognize their capacity to grant legal consent, particularly for sexual activity with adults.

Consequently, even if you genuinely believed that the minor had consented, such a belief would not absolve you from legal liability in cases involving children. In these instances, the paramount concern of the law remains the safeguarding of minors.

You Were Falsely Accused

The legal system approaches these cases carefully and fairly when you are accused of sexual offenses. You are innocent until the prosecution can prove your guilt beyond a reasonable doubt. This places the responsibility on the prosecution to present compelling evidence supporting the accusations against you.

Evidence plays a critical role in these cases. Physical evidence, eyewitness testimonies, electronic communications like text messages and emails, and other relevant documentation determine whether the accusations are true or false. Investigations are necessary to evaluate the credibility of the accusations and collect information that either substantiates or disputes the claims.

We will explore the motive behind the accusations. Any potential biases, personal grievances, or reasons that could have led to false allegations will help defend you. We will present this information in court if there is credible evidence indicating a motive for false accusations. This helps challenge the accuser's credibility and shed light on the factors influencing the allegations.

Insufficient Evidence

Regarding evidence, oral copulation by force or fear differs from rape. Unlike rape cases, which could involve visible injuries to the alleged victim, allegations of oral copulation by force or fear could not always result in physical evidence. This difference arises from the nature of the acts involved. Oral copulation does not necessarily result in the same types of physical trauma commonly associated with rape.

Cases of oral copulation by force or fear often rely on different forms of evidence to establish the occurrence of the alleged crime. These can include testimonies, statements, and circumstantial evidence. Notably, the absence of visible physical injuries does not automatically preclude the possibility of pursuing charges or conducting a thorough investigation in these cases.

Whether a case proceeds or leads to a dismissal depends on several factors. These include:

  1. The specific circumstances of the case.
  2. The strength of the evidence presented by both the prosecution and defense, and
  3. The judgment of the presiding judge or jury.

If the prosecution lacks sufficient evidence to prove your guilt beyond a reasonable doubt, it could weaken the case, potentially leading to a dismissal.

Potential Penalties

  • If the Victim is an Adult

Oral copulation is a felony. Its potential penalties upon conviction include the following:

  1. Felony probation instead of imprisonment — However, felony probation is exclusively available in cases of oral copulation involving a disabled person. This option does not extend to cases involving oral copulation by fear or force or when the victim is intoxicated or unconscious.
  2. 3, 6, 8 years in prison.
  3. A maximum fine of $10,000.

Note: If anyone engages in oral copulation in jail or prison, he/she receives an additional sentence of no more than one year in jail or prison. 

  • If the Victim is a Minor

The penalties increase if the victim is a minor. You will face the following penalties if convicted:

  1. 6, 8, or 10 years in prison if the victim was 14 years or older.
  2. 8, 10, or 12 years in prison if the victim was under 14 years.

  • If You Used Fear or Force While Committing the Crime in Concert

"Acting in concert" refers to the collaborative involvement of two or more individuals who share a common purpose or plan to commit the offense. This collaboration can take various forms, including:

  1. Direct physical participation by all individuals or
  2. One person actively engages in the act, while others provide aid or assistance in some capacity — You will be subject to the aiding and abetting rule.

A conviction results in the following penalties:

  1. 5, 7, or 9 years in prison if the victim is an adult.
  2. 8, 10, or 12 years in prison if the victim was 14 years or older at the time the crime was committed.
  3. 10, 12, or 14 years in prison if the victim was less than 14 years old at the time the crime was committed.

Registration as a Sex Offender

A conviction for oral copulation by force or fear can result in lifelong sex offender registration as a Tier 3 offender.

The Sex Offender Registration Act, commonly known as Megan's Law, mandates that individuals convicted of sex offenses, particularly those classified as tier three offenders, register with local law enforcement agencies in California. This registration process involves providing comprehensive personal information, including the offender’s:

  1. Name.
  2. Address.
  3. Photograph, and
  4. Various identifying details.

Registered sex offenders in California must adhere to the following renewal requirements:

  1. Annually, within five working days of their birthday.
  2. Whenever they change their place of residence,

Non-compliance can result in further legal complications.

Statute of Limitations

The statute of limitations in oral copulation cases hinges on the age of the victim when the offense occurred.

If the victim was under 18 during the offense, the statute of limitations extends until the victim reaches 40. Furthermore, charges can be pursued within one year, following specific criteria:

  1. The victim reports the oral copulation against a minor to the police.
  2. All other applicable statutes of limitations have expired.
  3. The allegation gains independent corroboration (excluding input from mental health professionals).

When the victim was 18 or older at the time of the offense, the statute of limitations stands at ten years from the date of the alleged oral copulation.

Importantly, regardless of the victim's age during the offense, the District Attorney can file charges within one year after the suspect's identity is confirmed through DNA testing.

Civil Action for Oral Copulation

A victim of oral copulation by force or fear can legally file a civil lawsuit against the defendant. These civil lawsuits, distinct from criminal proceedings, provide victims with a means to seek compensation for various damages resulting from the crime. These damages include.

  1. Medical expenses — Victims are entitled to seek compensation for medical costs associated with injuries or health issues stemming from the unlawful act. This could include medical examinations, treatments, therapy, and rehabilitation expenses.
  2. Emotional distress — After experiencing such a traumatic event, victims often grapple with emotional distress, trauma, anxiety, depression, and other psychological effects. Damages are recoverable to address these emotional injuries.
  3. Pain and suffering — Victims could seek damages for physical pain and suffering endured during and following the incident. This extends to encompass emotional anguish and distress.
  4. Loss of earning capacity — If the victim's ability to work and earn a livelihood is compromised due to the incident, they can seek compensation for the loss of earning capacity. This includes projected future lost wages and benefits.
  5. Loss of consortium — In some instances, the spouse or partner of the victim could have the right to file a lawsuit for the loss of consortium. This pertains to the loss of companionship, affection, and support stemming from the victim's suffering.
  6. Punitive damages — In particularly egregious or intentionally malicious cases, the courts could award punitive damages. These damages penalize the defendant and deter similar behavior in the future.

Contact a Bakersfield Criminal Defense Attorney Near Me

Facing charges related to a PC 287 violation is a grave matter with potentially severe consequences. It is best to enlist the support of a skilled and committed attorney to navigate the legal complexities. An attorney will work to secure the most favorable outcome.

At the California Criminal Lawyer Group, our Bakersfield team will provide legal counsel, safeguard your rights, and vigorously represent your interests throughout the legal proceedings. Contact us at 661-750-8230 for more information.