Oral copulation is defined by California law as the non-consensual touching of an individual's private body parts with someone else's mouth. These private body parts could encompass the vagina or the anus. Oral copulation is not a sex offense in California when the two people engaged in the sexual act have given their consent. When your partner agrees to oral copulation, he or she cannot argue that the act was forced on them against their will. However, oral copulation on a person who is under the influence of drugs, sleeping, or unconscious is illegal.
PEN 288a states that using physical force, intimidation, or threats to force someone to perform oral copulation is illegal in California. If you have been charged with this sex crime, the Riverside Criminal Defense Attorney Law Firm will counsel you on your legal options and let you know how you can defend against these charges.
An Overview Of Oral Copulation By Fear Or Force
According to California PEN 288a, oral copulation is an offense against another person's free will. It's also illegal to engage in oral copulation with a person who is under the age of consent. This is because anyone under the age of 18 is not capable of consenting to oral copulation. PEN 288a under California law covers the crime of oral copulation by force/ fear. To convict you of oral copulation by fear or force, the prosecutor must present proof that:
- Your victim didn't consent to oral copulation
- You employed coercion, threats, intimidation, unwarranted bodily harm, threats of future physical harm, or threats of imminent danger
- You were involved in oral copulation acts with another person
As per PEN 288a, you could be charged with this crime if you engage in oral copulation with:
- An individual who is incapable of consenting or accepting to engage in oral copulation due to a mental or physical impairment
- An unconscious person
- A person who is drunk that he/she is unable to refuse your overtures
Oral Copulation With A Physically or Mentally Disabled Person
If you indulge in oral copulation with a mentally or physically challenged person by force or fear, you are in contravention of PEN 288a. A disabled person's impairment could make it difficult for them to comprehend the implications and essence of oral copulation.
If you were fully cognizant that the person's impairment would prevent them from legally agreeing to oral copulation, you will be found to violate PEN 288a.
Oral Copulation With an Intoxicated Person
When you engage in an oral copulation act with an intoxicated person, you could be convicted for infringing PEN 288a. For this statute to be enforceable, the prosecution must present evidence demonstrating two elements. He/she should first demonstrate that the victim was unable to resist due to the influence of alcohol, or any other intoxicating drugs. Secondly, he/she should demonstrate that you were conscious that without the intoxication, the victim would not have agreed to oral copulation.
Intoxication, under PEN 288a, affects a person's capacity to consent. This is because the substances render a victim incapable of understanding the potential ramifications and physical essence of oral copulation.
The issue of consent while performing oral copulation, on the other hand, has sparked heated debate. The majority of sexual acts take place when one or two individuals are intoxicated. It's difficult to show consent, particularly when both individuals were inebriated at the moment of oral copulation.
Oral Copulation With An Unconscious Individual
When you participate in oral copulation with an unconscious individual, you could be charged under California PEN 288a. For this crime to be prosecuted under PEN 288a, the prosecution must show that:
- You were aware that the individual would not resist because he or she was unconscious
- You participated in oral copulation with somebody who was either asleep or oblivious of the essence and consequences of this act
Under California law, the plaintiff didn't have to be unconscious for PEN 288a to have relevance. The victim simply needed to be unconscious or oblivious of the form and implications of the oral copulation act that was happening at that moment.
It means that the individual could have been conscious of the act that was taking place or he or she could be unconscious. This also could indicate that the individual was unaware of the oral copulation act since he/she was misled or tricked into doing it.
Force or Fear
According to California laws, there are various ways to instill force or fear in a person to coerce him/her to participate in oral copulation. Force or fear is defined as follows under California PEN 288a:
- Menace. Using an assertion, a threat, or even an action that reveals a desire to harm someone else
- Unlawful bodily harm as well as the prospect of imminent harm
- Force. Under California PEN 288a, you only need a small amount of force to overcome someone else's will
- A threat of vengeance if the victim does not agree to your requests then you issue threats to kill him or her, another person, inflict serious harm or kidnap them
- Duress. You could violate PEN 288a by threatening to use force; actual force might not be warranted. The threat could be direct or indirect. The argument is if your actions would cause a rational individual to do anything he/she would not do normally
With No Consent
The aspect of oral copulation with no consent in acts of oral copulation is closely associated with PEN 261 rape as well as other sexual crimes. To consent to acts of oral copulation, a person must first comprehend the form or nature of that act and then perform it willingly and voluntarily. Even though one person consents to oral copulation and then retracts his or her consent, the other could be accused of oral copulation by force or fear when the act is carried out.
According to California laws, you cannot demonstrate that the other party consented to oral copulation in the following ways:
- You are or had been married to the other party
- You and the other party were seeing each other or had dated
- That the other party asked that you use a condom
You could be able to refute the accusations under California PEN 288a when you reasonably believed that the other party agreed to oral copulation.
Penalties For PEN 288a Violations
PEN 288a violations are felony offenses in California. If you are convicted of oral copulation by force or fear, you can face an 8-year sentence in state prison. If the plaintiff is a minor below 18 years, the penalty may be increased. For a plaintiff aged 14 to 18, you can face a 10-year sentence in state prison. Additionally, if the plaintiff is under fourteen years, you might face a 12-year sentence in state prison. Following a conviction for infringing PEN 288a, the court could impose maximum fines of $10,000 as well as formal probation.
Penalties For Oral Copulation Involving Fear Or Force
Under California law, committing oral copulation using fear or force in concert with someone else could aggravate the penalties for breaking PEN 288a. You are guilty under California PEN 288a if you participate in oral copulation willfully and directly. If you indirectly, support or help another person in participating in oral copulation by force or fear, you can be charged under California PEN 288a. Oral copulation by force or fear in concert involves oral copulation in the presence of at least one other person.
If the plaintiff is above the age of 18, breaching PEN 288a in concert can result in a 9-year sentence in state prison. When the plaintiff is between 14 and 18 years, you can be sentenced to a 12-year sentence in state prison. If the plaintiff is under 14 years, you could face a 14-year prison term.
Registration As A Sex Offender
Following the sentencing for oral copulation by force or fear under California PEN 288a, you could be susceptible to the state's sex offender registration rules. You may be forced to list as a tier 3 sex offender, which means you'll have to list as a sex offender for the entirety of your life.
Under California's sex offender registration statutes, sex offenders should register themselves with the law enforcement authorities in the city or jurisdiction in which they reside.
You will need to renew your registration every 5 years or when you relocate to a new place. In addition to the registration requirements, sex offender designation, like any other jail sentence, can result in considerable societal humiliation and suffering.
PEN 288a Civil Obligation For Oral Copulation By Force or Fear
Sexual assault survivors in California can file a lawsuit and demand compensation under California law. The plaintiff may be entitled to compensation if he or she can show that the offender conducted an unlawful sexual act.
You could incur civil penalties on top of your criminal charges if you commit the crime of oral copulation by force or fear. If you are convicted of a civil offense, you must pay the victim for suffering and pain as well as punitive damages. You'd also have to pay for any damages the victim could have incurred as a result of your acts.
Compensation for lost consortium can be sought by the deceased's spouse or legal domestic partner. When your actions have an impact on the plaintiff and his/her relationship with their spouse, you may be liable for lost consortium compensation. You could face civil charges in addition to criminal charges if you commit the crime of oral copulation by fear or force. Once the victim reaches forty years of age, the statute of limitations comes to an end.
Applicable Defenses To Oral Copulation By Force Or Fear Charges
The hefty fines and societal humiliation associated with oral copulation by force or fear conviction under PEN 288a can result in frustration and unhappiness for the rest of one's life. The great news is that you can use several valid defenses to defend yourself against accusations of oral copulation by force or fear. With the guidance of an experienced criminal defense lawyer, you can evaluate the facts of your matter and develop a successful defense strategy. Oral copulation allegations could be countered with legal defenses such as:
Oral copulation by fear or force, unlike rape under PEN 261, lacks evident physical proof such as injuries or scars on the plaintiff. Oral copulation lawsuits involving force or fear often end up being unsubstantiated. In this instance, your attorney could employ investigative tactics such as specialized polygraph exams to counter the prosecutor's claim that the allegation doesn't hold up. Aside from your alleged victim's testimony, the prosecutor can lack the solid proof to prove that the alleged act occurred.
You had consent
An element the prosecutor must prove to prosecute you with oral copulation by force or fear is an absence of consent. In most incidents of sexual assault, there's usually a lot of doubt concerning if the accused rationally concluded that the victim agreed to the act or if he or she did not. If you had a reasonable belief that the plaintiff had consented, you'll not be found guilty of this crime.
The cases of oral copulation by fear or force are comparable to other sexual assault matters in that claimants often make false accusations against the offenders. Your accuser could be a present or former partner who is envious or furious and who proceeds to make such claims. A good lawyer can assist you in creating an evidential document that will uncover the facts in your claim.
The majority of oral copulation cases are based on claims made by one witness. Inappropriate tactics can be utilized to obtain testimonies to support the accusations. If your attorney can show that the plaintiff's confessions and proof were acquired in an unethical manner, the charges can be dropped.
Crimes Related To PEN 288a
PEN 288a, or oral copulation by force/fear, is the subject of various California laws. These offenses are commonly charged alongside PEN 288a. These are some of the offenses:
PEN 243.4 — Sexual Battery
You could be charged with sexual battery when you touch someone else's private parts without their consent for pleasure, abuse, or sexual enjoyment. The prosecutor must prove that you intentionally touched someone else's private body parts. Unlike other sexual offenses such as rape, sexual battery doesn't require you to participate in real sexual acts of penetration to be charged. Even when you and your victim are in a relationship, you can be charged with sexual battery.
Under certain conditions, you can face additional penalties for sexual battery. When you illegally detain a victim during the commissioning of sexual battery, you could end up facing even more serious charges. You might have someone else detain the individual for you. If you commit a sexual battery act on a disabled individual or someone who is hospitalized for medical care, you will receive severe charges.
If the individual was oblivious of the essence of your actions because you misled them into believing that the inappropriate contact was for professional reasons, you will also face enhanced charges. Aggravated sexual battery occurs when you force a victim to perform masturbation acts or touch someone else's private parts.
If there are no extenuating elements, sexual battery is charged as a misdemeanor offense. The penalty for a misdemeanor crime includes a maximum of 6 months in county jail. The court may also issue a fine of up to $2,000. An additional fine of $3,000 could be imposed when the victim of the sexual battery act is a member of your staff.
You could potentially be sentenced to five years of misdemeanor probation. Throughout your probation term, you need to adhere to the terms of your probation, which include attending a batterer's rehabilitation program and taking part in community service. You could also be required to finish a program for persons who have compulsive disorders.
A felony charge in California can result in a sentence of two, three, or four years in California state prison. If the plaintiff suffered serious bodily harm, you could face additional prison time. Maximum fines of up to $10,000 could be imposed if convicted. Then you'd have to list as a tier 3 sex offender for the rest of your life.
PEN 261 — Rape
According to PEN 261, rape is described as non-consensual sexual conduct perpetrated by deception, force, or intimidation. This description is comparable to the California PEN 288a definition of oral copulation by force/fear. The sole distinction between rape and oral copulation would be that rape entails sexual intercourse whereas oral copulation entails oral sex.
Before prosecuting you for rape, the prosecution will need to demonstrate certain elements. It has to be obvious that you had sexual relations with someone else. It also needs to be obvious that you and the plaintiff weren't married at the moment when you committed the crime. The prosecution needs to show that the victim did not consent to your acts. You might have perpetrated rape under coercion, violence, threat, deception, revenge, or the fear of physical harm. To be accused of rape, your victim should be conscious at the moment of the crime.
It is not uncommon for an offender to be convicted of both PEN 288a oral copulation by fear/force and PEN 261 rape in California. That's because the two crimes often occur together. If you are convicted of rape as per PEN 261, you will face a felony charge and a maximum of an 8-year prison sentence.
You can defend yourself against rape allegations by claiming that the victim agreed to the intercourse during the commissioning of that crime. You can also state that you didn't engage in any sexual activity or any penetration. You could potentially be the victim of fraudulent claims.
California law makes rape an immediate felony. The felony carries a maximum sentence of an 8-year imprisonment term in state prison. Rather than jail time, the court could impose felony probation. When the victim suffers a serious bodily injury while the crime is being committed, you will be sentenced to an extra 3 to 5 years in jail. If the rape victim is a child, the punishment will be increased.
PEN 288a — Oral Copulation On A Child
If you are found to be guilty of oral copulation with a minor, even though it was done without force, fear, or consent of the child, you could receive criminal charges under California PEN 288a. This is because a minor cannot consent to have intercourse with an adult. For this reason, oral copulation is classified as a wobbler in this classification of PEN 288a. The prosecution has the authority according to California law to prosecute you with a felony or misdemeanor in this situation. The choice in this situation is based on your criminal background as well as the particular details of the offense.
In certain cases, oral copulation with a minor is automatically considered a felony. For example, if the plaintiff is under the age of 16 and you are over the age of 21, you will be charged with this offense under California law. In this situation, you could end up facing up to 8 years imprisonment.
If the prosecution does not have enough evidence to prosecute you with oral copulation by force or fear with a child, they could lessen the charges against you. The prosecution could, for example, reduce your accusations to oral copulation on a child without force or fear. A plea deal can result in a reduced sentence as well as public stigma.
Find a Riverside Criminal Defense Attorney Near Me
Charges of oral copulation by force or fear should not be taken lightly. If you have been accused of this offense, you should consult a knowledgeable attorney right away. We at Riverside Criminal Defense Attorney Law Firm have assisted many people in successfully fighting against accusations under California's PEN 288a. You could also benefit from our legal services. Call 951-946-6366 to talk with one of our lawyers.