Oral Copulation Penal Code 288a

What is Penal Code 288(a) (Oral Copulation by Strength or Fright)?

It is against the law in California to place your mouth on somebody else’s genitals or anus without their agreement. This prohibition is written into the California law books as Penal Code 288(a).  The law is commonly referred to as Oral Copulation by Strength or Fright.  It is a sex crime actively and vigorously pursued by police and prosecutors. 

You can be charged with California Penal Code 288(a) Oral Copulation as either a felony or a misdemeanor.  If you are charged with felony oral copulation, then your charges will be pursued by the District Attorney’s Office.  If you are charged with a misdemeanor, then your charges will most likely be pursued by the City Attorney’s Office.

Let us now explore the legal description of California Penal Code 288(a) Oral Copulation.  As Sex Crimes Attorneys, we believe in educating our clients as much as possible about the sex crime charges that they face.  We feel that an educated client is better prepared to deal with the ups and downs of a criminal tribunal.  It will also help you better comprehend the potential problems and chief matters that will likely come up at some point during the criminal prosecution.  Lastly, learning about the issues will help you help us find holes in the evidence and better understand the case as a whole. 

What is the Legal Description of California Penal Code 288(a) Oral Copulation?

Before you can be convicted of a sex crime in the state of California, the prosecutor has to prove the charges against you.  To do so, the prosecutor has to prove certain facts (or elements).  All of the elements of the sex crime have to be proven before you can be convicted in a trial, where a judge or jury makes the ultimate verdict regarding guilt or innocence.  Note, however, that you can still be convicted of a crime through other methods.  You can earn a conviction if you formally confess to a crime or if choose to accept a plea bargain offer.  Otherwise, the prosecutor has to prove all of the elements of the sex crime to a certain degree of certainty.  In California criminal cases, each element as to be proven “beyond a reasonable doubt.”

The elements for California Penal Code 288(a) Oral Copulation (by Strength or Fright) are as follows:

  • Either touching with your mouth or causing another to use their mouth to touch the genitalia or anus of another person (or your own)
  • You commit the action in Element #1 without the agreement of the other person.
  • You commit the action in Element #1 with the use of either Strength or Fright or the threat of Strength of Fright. You could also be subject to Penal Code 288(a) if you commit an act of oral copulation with somebody who is so intoxicated that they are unable to defend themselves, with somebody that is unconscious, or with somebody that maintains a psychological or body disability such they cannot legally agree to participating in oral copulation.

At this point, let us review each of these elements in more detail.  By doing this, you will get a better sense of what significant matters may come up in your individual criminal case.  The elements of Penal Code 288(a) Oral Copulation determine how the investigations proceed around your case – both on the prosecution’s side and the defense side.  They also frame negotiations around getting your case dismissed or charges reduced.

  • What is Oral Copulation?

California Penal Code 288(a) Oral Copulation considers oral copulation to be the touching, regardless of how trivial or fleeting, of the mouth of one person to the genitals or anus of another person.  For males, genitals comprises of the penis and the testicle area.  For liability under California Penal Code 288(a) Oral Copulation, there is no requirement that any penetration need occur.

  • By Strength or Fright

California courts broad define what is  “oral copulation by Strength or Fright.”  For this element of Penal Code 288(a) to be complied with, any of the following may be done:

  • Strength: Penal Code 288(a) only necessitates the lowest amount of strength essential to overwhelm the other person’s willpower.
  • Duress: A Penal Code 288(a) crime can happen through the threat of strength. The actual use of strength is not required to be convicted.  The threat can be express or roundabout.  What matters is whether or not you cause a sensible person to act in a way they would not if it were not for the duress you caused.
  • Menace: This means causing a threat that illustrates the desire to harm the potential target.
  • Threats of Retaliation: You threaten to hurt the victim in some way if they do not comply with your wishes.
  1. Oral Copulation involving an Intoxicated Person:

You are guilty of a California Penal Code 288(a) incident if you compel an act of oral copulation with another person who is intoxicated.  In order for this to occur, the prosecutor must show two distinct facts.  First of all, they have to show that the other person was unable to resist your advances.  This could be due to the fact that they ingest drugs, alcohol, etc.  Next, they need to show that you knew or reasonably should have knew that their intoxicated state prevented them from properly being able to agree to your actions.

Under California Penal Code 288(a) Oral Copulation, somebody is considered too intoxicated to legally give agreement if they are incapable of understanding the nature of the oral copulation act and the following potential ramifications.  As you can tell, this issue isn’t necessarily black and white.  It is hard to tell exactly what happens when one or two people are intoxicated.  These kinds of situations often turn into “he said, she said” type of situations and juries may ultimately make a determination on the side of a person who they believe has more credibility.  On one hand, this works in your favor because the evidence is primarily the word of one person.  However, it works against you because juries may not give you the benefit of doubt – especially in this charged political climate.

  1. b) California Penal Code 288(a) Oral Copulation with Somebody who is Unconscious.

You are subject to punishment under California Penal Code 288(a) Oral Copulation if you compelled an act of oral copulation with a person who was unconscious.  To earn a conviction under this type of scenario, the prosecutor must be able to show two different facts.  First of all, the prosecutor must show that you participated in oral sex with another person who was unconscious of it happening.  Second, they also need to show that you knew or reasonably should have knew that the other person was not able to resist your advances because of their unconsciousness.  For California Penal Code 288(a) Oral Copulation liability to be applied to you, the other person does not have to be unconscious.  Rather, they have to be “unconscious to the nature of the oral copulation act.”  Therefore, you can be subject to California Penal Code 288(a) Oral Copulation liability if the other person was asleep or unaware of the oral copulation act.  It could also mean that the other person was not conscious of the oral copulation act because you fooled or lied to them about the nature of what was happening.

  1. c) California Penal Code 288(a) Oral Copulation with a Person with a Disability

You are subject to California Penal Code 288(a) Oral Copulation liability if you compel an act of oral copulation with a person who has a psychological or body disability.  To be subject to California Penal Code 288(a) Oral Copulation liability, the disability must be one that hinders them from grasping the nature of the acts they are undergoing.  The prosecutor must show that the act of oral copulation occurred and that you knew or reasonably should have knew that the disability would have hindered the person from legally agreeing to the oral copulation act.

2) What are the potential consequences for a conviction under California Penal Code 288(a) Oral Copulation?

California Penal Code 288(a) Oral Copulation is considered a felony.  If convicted of California Penal Code 288(a) Oral Copulation, you could be sentenced to a maximum of eight years in a California State Prison.  However, this maximum prison sentence could be increased if the victim is a minor (somebody who is under the age of eighteen).  You could be sentenced to a maximum of ten years in a California state prison if the victim is between the ages of 14 and 18.  You could be sentenced to a maximum of twelve years in a California state prison if the victim is under fourteen years of age.

On top of prison time, a conviction under California Penal Code 288(a) Oral Copulation could result in formal (felony) probation and/or up to a maximum fine of Ten Thousand Dollars.

  1. Consequences for committing an act of oral copulation by Strength or Fright in conjunction with another person.

The consequences for a violation under California Penal Code 288(a) Oral Copulation will increase if it can be shown that you committed the unlawful oral copulation “in conjunction” with another person.  This means that not only are you liable under California Penal Code 288(a) Oral Copulation if you were directly involved with the unlawful acts, but you could also be liable under California Penal Code 288(a) Oral Copulation even if you did not directly participate.  You could be punished for aiding and abetting another person in committing the unlawful California Penal Code 288(a) Oral Copulation.

If found to have committed California Penal Code 288(a) Oral Copulation “in conjunction”, you could be sentenced to a maximum of nine years in a California state prison.  This sentence applies if the victim is not a minor (over the age of eighteen years).  However, the maximum punishment goes up to twelve years of prison time if the victim is between the ages of fourteen and eighteen.  And the maximum punishment goes up to fourteen years of state prison time if the victim is under the age of fourteen.

  1. California Penal Code 288(a) Oral Copulation and California’s Sex Offender Registry Requirement.

If you are convicted under California Penal Code 288(a) Oral Copulation, then you will be required to submit to California’s sex offender registry laws.  You will be mandated to register as a level three offender for your entire life.  California’s sex offender registry laws require sex offenders to register with their local police station in the city that they reside.  You will have to renew this registration every five years or every time you move to a new place.  Apart from the registration requirement, sex offender status carries a large level of social stigma that lead to a lifetime of pain and struggles.  The registration requirement, for many offenders, is the worst part of their overall sentencing plan because they find it hard to lead a normal life.

  • How do you defend yourself against a charge of California Penal Code 288(a) Oral Copulation?

As illustrated above, a conviction under California Penal Code 288(a) Oral Copulation can result in a lifetime of punishment.  If you find yourself charged with California Penal Code 288(a) Oral Copulation, you need to find yourself a Sex Crimes Attorney who is knowledgeable about California Penal Code 288(a) Oral Copulation and can assist you fight the charges you face.  Your Sex Crimes Attorney can take advantage of the many legal defenses available to fight a charge of California Penal Code 288(a) Oral Copulation.  A zealous and thorough Sex Crimes Attorney can review the specific circumstances of your situation and then tailor-make a defense strategy that utilizes all possible defenses.  Let us discuss some of these potential defenses so you have a sense of your rights and liabilities.  Also, these defenses require cooperation on your end because you will work with your Sex Crimes Attorney to back up the legal arguments with evidence and testimony.

The following legal defenses to California Penal Code 288(a) Oral Copulation include the following, non-exhaustive list:

  • Untrue Allegations: Penal Code 288 is comparable to other sex crimes in the sense that it is not unusual for defendants to face untrue allegations from a complainant.  These complainants might be a previous or present paramour who are motivated to make such allegations because they are annoyed or resentful.  A thorough Sex Crimes attorney can build up the evidential record in your favor to help expose the truth.
  • You had Agreement: As talked about above, absence of agreement is one of the elements that a prosecutor must prove in order to convict you of a Penal Code 288(a) violation. The issue of agreement is often surrounded with uncertainty.  Many Penal Code 288(a) cases are surrounded by the question of whether or not the victim actually agreed and whether or not the defendant should have reasonably believed that the alleged victim did agree.   These kinds of cases tend to devolve into “he said/she said” type situations.  With the right Sex Crimes Attorney presenting and building your case, it will be tough for a prosecutor to prove absence of agreement beyond the required level of certainty required by law.
  • Not Enough Evidence: Analogous to other sex crimes, Penal Code 288(a) oral copulation by strength or fright cases often turn into a “he said/she said” situation. Many cases are founded on no physical evidence and wholly on the allegations of the supposed accuser.  In these kinds of situations, a methodical Sex Crimes attorney can use a large collection of evidentiary tools to develop a case in your favor.  For example, your Sex Crimes Attorney can utilize polygraph tests to persuade the prosecutor to dismiss the Penal Code 288(a) charges.
  1. Similar Offenses to California Penal Code 288(a) Oral Copulation

California’s law books uphold a variety of laws that are similar to California Penal Code 288(a) Oral Copulation.  These crimes are commonly charged with, or instead of, California Penal Code 288(a) Oral Copulation.

  1. a) Penal Code 288(a) Oral Copulation on a Person Under the Age of 18

Regardless of whether you had the “agreement” of the victim or did not use Strength or Fright, you could be subject to criminal liability if you participated in oral copulation with somebody under the age of 18.  Legally, minors are not able to agree to such an act.  Therefore, this would not be an issue explored for liability purposes in your criminal prosecution.  Although, it may be relevant to your final sentencing if you are convicted and in terms of what kind of conviction you will receive.

This form of Penal Code 288(a) oral copulation is considered to be a “wobbler”.   If a sex crime is a wobbler, the prosecutor has the ability to choose whether to charge you with either a felony or a misdemeanor.  They make this decision based on the facts of the crime and your individual criminal record.  For example, if you committed similar sex crimes in the past, you are more likely to be charged with a felony.

However, there are some situations where oral copulation with a minor can lead to an automatic felony.  For instance, if you are over the age of twenty-one and the victim is a minor who is under the age of sixteen, then state law mandates that you face a felony.  If you are convicted, you could be sentenced with a maximum of eight years in state prison. 

Even though this particular crime carries strong penalties, they are less severe and carry a decreased amount of social repercussions than California Penal Code 288(a) Oral Copulation by Strength or Fright.  In these situations, your Sex Crimes Attorney and you can talk about negotiating with the prosecutor about a plea bargain to this offense.  However, when talking with your Sex Crimes Attorney, both of you should factor in the chances of beating any conviction whatsoever.

Call a Sex Crimes Attorney Today.

If you are charged with California Penal Code 288(a) Oral Copulation, the freedom and liberty of your life is at stake.  It is important you do your research and find the best possible Sex Crimes Attorney to defend you.

We invite you to call us for a free consultation.  Our Sex Crimes Attorneys are smart, meticulous, and passionate about criminal defense.  They will gladly review your case and answer any questions you might have about legal defenses, potential sentences, and the criminal prosecution process as a whole.

Call 424-835-9799 now.

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