California law under Penal Code Section 288a defines oral sex as copulating the mouth of one person with the sexual organ or anus of the other person. California criminalizes oral sex according to three categories:
- Participating in oral copulation with a minor;
- Committing forcible oral copulation; and
- Acting in concert with another person to force an individual to engage in oral copulation.
Participating in Oral Sex with a Minor (Penal Code Section 288a(b).)
Generally, it is a crime to participate in oral sex with a minor. A person less than 18 years old cannot consent to sexual activity unless he or she is legally married or emancipated.
If you are convicted of oral copulation with a minor, your punishment will be based in part on the age of the minor when the offense was committed. The list below explains the differing punishments based upon the victims age:
- Under 18 years – You face either a misdemeanor or a felony charge, depending on the facts of the case. A misdemeanor carries up to one year in jail. A felony carries up to three years in prison.
- Under 16 years – If you are 21 years of age or older, it is a felony punishable by up to three years in prison.
- Under 14 years – If you were more than 10 years older than the child, it is a violent felony (a “strike”) punishable by three, six or eight years in prison (PC 288a(c)(1).)
Forcible Oral Copulation (Penal Code Section 288a(c).)
If you commit oral copulation against the victim’s will accomplished by using force, duress or threat of immediate or future harm to either the victim or someone else, you can be charged with a strike. A violation also occurs if you knowingly copulate an unconscious or unaware person.
If you are convicted, forcible oral copulation involving an adult victim is punishable by up to eight years in prison. If your victim was a minor (under 18), you face up to 10 years. If you victim was a child (under 14), you face up to 12 years.
Forcible Oral Copulation Acting in Concert (Penal Code Section 288a(d).)
It is unlawful for “any person who, while voluntarily acting in concert with another person, either personally or by aiding and abetting that other person, commits an act of oral copulation” and does so against the person’s will under the following conditions:
- Using force or fear of immediate and unlawful bodily injury on the victim or another person; or
- Threatening to retaliate in the future against the victim or any other person; or
- Where the victim was incapable, because of a mental disorder or developmental or physical disability, of giving legal consent.
If your victim was an adult, a conviction is punishable by imprisonment for five, seven or nine years. Sentencing for a minor victim ranges from 8 to 14 years in prison.
Statutes of Limitations for Oral Sex Crimes in California
A misdemeanor violation of PC 288a must be prosecuted within one year from the date of the offense. Pursuant to Penal Code Section 801.1, a felony violation may be prosecuted as follows:
- Until the victim’s 28th birthday (applies if your oral copulation victim was a minor); or
- Within 10 years from commission of the offense (applies to any felony sex offense listed under Penal Code Section 290(c).).
In other words, the 10-year statute of limitations for an oral copulation offense would apply if your alleged victim was an adult at the time of the crime.
Additionally, pursuant to Penal Code Section 803(f) a criminal complaint may be filed within one year after a person of any age makes a report to a law enforcement agency alleging he or she was the victim of a specified sex offense, provided that:
- All other eligible periods of limitation have expired;
- The allegation involves “substantial sexual conduct” as defined by Penal Code Section 1203.066 (which includes oral copulation); and
- There is independent information corroborating the allegation. An alleged victim making the report who is 21 years of age or older must show clear and convincing evidence of the allegation. The evidence must be admissible during trial and does not include the opinion of a mental health professional.
Under Penal Code Section 803(g), a “DNA exception” rule also applies where a suspect’s identity can be conclusively established through DNA testing. To qualify for the exception, the following conditions must be met:
- The offense was committed prior to January 1, 2001, and biological evidence collected in connection with the offense is analyzed for DNA type no later than January 1, 2004, or
- The offense was committed on or after January 1, 2001, and biological evidence collected in connection with the offense is analyzed for DNA type no later than two years from the date of the offense.
Sex Offender Registration
Unlawful oral copulation pursuant to PC 288a is listed as a mandatory lifetime registerable sex offense. However, in some cases a consensual but unlawful act of oral sex may not necessarily require you to register as a sex offender.
You may qualify for a “Hofsheier” motion, giving a judge the option to use his or her discretion to relieve you of registration requirements.
If you are required by law to register as a sex offender for a prior conviction of unlawful but consensual oral sex, you should speak to an experienced criminal defense attorney about what options may be available to you to be relieved of mandatory sex offender registration.
Our Attorneys at Wallin & Klarich Can Help
If you or someone you love has been charged with unlawful oral copulation pursuant to Penal Code Section 288a, it is critical that you speak to an experienced criminal defense attorney at Wallin & Klarich today. Our attorneys at Wallin & Klarich have over 30 years of experience successfully defending our clients charged with unlawful oral copulation.
You may qualify for reduced sentencing. We may even be able to get the charges against you dismissed altogether. If you’ve already been convicted, options may be available to you to expunge your conviction and challenge a mandatory sex offender registration requirement.
With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, our attorneys at Wallin & Klarich will explain all of your options to you and get you the best result possible in your case.
Call us today at (888) 280-6839 for a free telephone consultation. We will get through this together.