California prosecutors charge sex offenses very harshly and are particularly aggressive with oral copulation through fear/force cases. Oral copulation by fear/force is a crime relating to non-consensual contact between one party’s mouth and the other party’s genital parts or anus. Penalties include a maximum prison sentence of 12 years and the requirement to register as a sex offender for life.
If you have been accused of this criminal conduct, you want to reach out to an expert criminal defense lawyer as fast as possible. Being convicted of this offense could take years of your freedom away and mandatory registration as a sex offender could have lifelong professional and personal repercussions.
At Darwish Law, we have defense lawyers with several years of experience in sex crimes. We have helped clients facing charges of oral copulation by fear/force in Santa Ana obtain the most favorable outcome by mounting solid defense strategies for their cases. Call us as soon as you have been accused or if you’re under investigation, and we’ll start fighting for you right away.
Defining the Oral Copulation by Force/Fear Crime
Oral copulation by fear/force or forcible oral copulation is one of the many sex crimes in California. It’s defined under Penal Code Section 287. Oral copulation refers to contact, regardless of how slight, between one person’s mouth and another person’s anus or sexual organ. Therefore, you commit forcible oral copulation when:
- You have your mouth come in contact with another person’s anus or sex organ or cause another person’s mouth to come into contact with your anus or sex organ.
- Without that person’s consent
- Using force, menace, duress, violence, fear of unlawful and immediate bodily harm to them/their loved one, or threats to retaliate against them
You could also be prosecuted under PC 287 for committing oral copulation with:
- A highly intoxicated individual who is incapable of resisting
- An individual that’s unconscious who is unaware of your act
- An individual with a physical or developmental disability or mental illness who is incapable of legally consenting
Instances of forcible oral copulation include:
- A man threatening to kill a woman’s baby if she doesn’t perform a blow job on him
- A woman kissing the genital parts of her male friend who had passed out because he was too drunk
- A man threatening to slit another man’s throat unless the man has oral sex with him
It is worth noting that the law on forcible oral copulation is gender-neutral. By this, it means it not only criminalizes forcible oral copulation of males and females, but it also criminalizes non-consensual oral copulation of females and other females or males and other males, provided either of the parties falls under any of the classifications mentioned above. Keep in mind that oral copulation acts between consenting grownups are lawful in California.
What the Prosecution Must Prove (Elements of Forcible Oral Copulation)
The District Attorney has to prove these elements for a conviction of the basic form of forcible oral copulation to occur:
- You orally copulated with another person
- That person didn’t consent to your act
- You achieved that act through menace, duress, violence, force, fear of unlawful or immediate bodily harm, or threats to inflict bodily harm in the future.
Let’s explain the legal meaning of the terms that make up the elements of this crime to gain a better understanding:
An Oral Copulation Act
As we mentioned above, oral copulation is any contact, irrespective of how trivial, between one person’s mouth and the anus or sexual organ of another. For purposes of this law, penetration isn’t required. The term sexual organ refers to the vagina, scrotum, or penis.
Absence of Consent
As with the crime of rape under PC 261 and other sex offenses, another key fact that the prosecuting attorney must prove to sustain a conviction for forcible oral copulation is the absence of consent. To agree to participate in an oral copulation act, an individual must understand what kind of action is being done to them and act voluntarily and freely.
Even if an individual consented to an oral copulation act at first, they could withdraw that consent. If someone withdraws their consent in the middle of an oral copulation act, the other individual could be found guilty of forcible oral copulation if they continue the act.
The following facts, in themselves, won’t be sufficient to substantiate that the supposed victim indeed agreed to an oral copulation act:
- You and they had dated or were dating
- You and they had been/were married
- The supposed victim required you to wear a condom
But if you reasonably believed the supposed victim had agreed to the oral copulation act, then you are not guilty per PC 287.
By Fear/Force
The forcible oral copulation’s element of fear/force can comprise of:
- Threats to retaliate in case the victim doesn’t submit— unlawfully confining or restraining, kidnapping, or causing extreme pain, death, or severe bodily injury on them or their loved one
- Threats of unlawful and immediate bodily injury
- Menace— an act, statement, or threat showing the intent to inflict an injury on the victim
- Duress— an implied or direct retribution, hardship, danger, violence, or threats of force that would drive a reasonable individual to do things they wouldn’t do under different circumstances
- Force— physical force enough to defeat the victim’s will
Orally Copulating With a Disabled Victim
We mentioned that you could be convicted of violating PC 287 if you:
- Engage in an oral copulation act with a person who has a mental illness or physical/developmental disability that prevents them from understanding what kind of action you’re performing and its potential consequences
- Know or should reasonably have known the person’s disability or disorder would prevent them from lawfully consenting
Orally Copulating With an Unconscious Victim
You may also be found guilty of violating PC 287 in case:
- You engage in an oral copulation act with a party that is unconscious of the nature of the act
- You’re aware that they are incapable of resisting due to this
Keep in mind that the victim need not be unconscious in the real sense for you to have violated this law. To be unconscious of an act could mean that the victim:
- Did not know the act’s essential characteristics because you lied, tricked, or concealed info from them
- Was not aware that you were performing the act
- Was asleep or unconscious
Orally Copulating With an Intoxicated Victim
Finally, you can also be criminally liable for violating PC 287 if you forcibly orally copulate with an individual, and the following is true:
- They cannot resist because they have consumed an alcoholic beverage, drugs, or any other intoxicating substance
- You’re aware or should reasonably have been aware that they couldn’t consent for this reason
There are several possible grey areas here because mostly, sexual encounters occur when the two parties involved are intoxicated or when one of them is. However, for PC 287 purposes, an individual is deemed intoxicated to give their consent to an act if they are incapable of comprehending and weighing its physical nature, character, and probable consequences.
Forcible Oral Copulation Statute of Limitations
If the alleged victim was below 18 years old when you committed the crime, the statute of limitation would end once the victim reaches 40 years. Alternatively, the prosecution may file charges within a year after:
- The accusations are backed by independent info (excluding the opinion of a mental health professional)
- All other statutes of limitations have ended
- The supposed victim files a report with the police claiming forcible oral copulation on a minor
If the alleged victim was 18 years or older when you committed the crime, the statute of limitations is ten years from the time of the supposed forcible oral copulation act.
Irrespective of the involved victim’s age when the crime occurred, the prosecution may file charges within a year after DNA testing establishes your identity as the suspect.
Legal Defenses Against Forcible Oral Copulation Charges
An expert sex crimes defense lawyer can help you escape the social stigma and harsh penalties resulting from a conviction of forcible oral copulation. They could have your charges dismissed or reduced by arguing one or several of these legal defenses:
Insufficient Proof
Unlike rape, forcible oral copulation doesn’t always generate physical evidence, for instance, an injury inflicted on the supposed victim. Consequently, the DA may not have concrete proof that the oral copulation act occurred whatsoever, except for the victim’s statements. If this applies to your case, your legal counsel may be capable of using investigative tools like private polygraph (lie detector) tests to persuade the DA the charges against you are too weak to pursue.
Consent
We mentioned earlier that absence of consent or permission is a critical element of forcible oral copulation. But in most cases, there’s so much ambiguity regarding whether the supposed victim indeed assented to the act. If you had reason to believe that the victim in your case had consented, you may not be guilty. Additionally, the absence of consent could be very challenging to substantiate beyond a reasonable doubt. Mainly, the prosecution relies on the ‘he said, she said’ claims.
False Accusations
Like other sex offenses, people fall victim to false accusations all the time as far as forcible oral copulation is concerned. The alleged victim could be a current or ex-sexual partner, and they may be falsely accusing the defendant out of anger, revenge, jealousy, or any other emotionally-driven stimulus.
A good comparison for false accusations of forcible oral copulation is false accusations of rape. One study by the FBI concluded that nearly 10 percent of rape claims don’t have any basis.
Penalties for Forcible Oral Copulation
PC 287 forcible oral copulation is always a felony. Its penalties include:
- A fine that doesn’t exceed 10,000 dollars
- Three, six, or eight years in prison
- Formal probation, available only in cases of forcible oral copulation against a disabled individual and not in those of forcible oral copulation against an unconscious/highly intoxicated victim
However, if the supposed victim was a child (i.e., under eighteen years when you committed the offense), the possible prison term will increase. In this case, you could face:
- Eight, ten, or twelve years in prison if the victim was below 14 years old
- Six, eight, or ten years in prison if the victim was 14 years or older
Forcible Oral Copulation in Concert
If you allegedly perpetrated forcible oral copulation in concert, the punishment will be harsher. The phrase ‘in concert’ means together with a minimum of one other person. The enhanced sentence applies either if you simply aided and abetted the perpetrator in committing the oral copulation act or you individually took part in the act. The possible state prison terms for forcible oral copulation in concert include:
- Ten, twelve, or fourteen years when the victim involved is a child under 14 years of age
- Eight, ten, or twelve years when the victim in question is a child 14 years or older
- Five, seven, or nine years when the victim isn’t a minor
The Requirement to Register as a Sex Offender
If you’re guilty of forcible oral copulation, you’ll be subjected to the obligation to register as a sex offender. In this case, you’ll be required to register for life. The Sex Offender Registration Act mandates that any person convicted of a sex offense residing in California register with law enforcement officers of the county/city where they live, and they must also renew this registration:
- Every time they move to another residence, and
- Each year within five working days of their birthday
This lifetime registration requirement is as harsh a penalty as a prison sentence.
Forcible Oral Copulation and Related Crimes
Several criminal acts are related to forcible oral copulation. Related crimes are those that can be charged instead of or alongside PC 287 forcible oral copulation. They include:
Sexual Battery – PC 243.4
PC 243.4 defines sexual battery, also known as sexual assault, as touching another party’s intimate parts with no permission from them to gratify or arouse yourself sexually or to abuse them. A violation of PC 243.4 is considered a wobbler offense, meaning the DA may opt to press misdemeanor or felony charges based on the facts surrounding the case and your criminal history. Mostly, the maximum prison sentence for a felony conviction is four years.
Based on the facts surrounding your case, the DA may press both forcible oral copulation and sexual assault charges. Alternatively, the DA may lower your forcible oral copulation charges to sexual assault charges.
The Crime of Rape – PC 261
Rape under PC 261 is described as non-consensual sexual intercourse achieved through fraud, force, or threats. The legal meaning of rape is almost similar to the definition of forcible oral copulation. The only difference is that when it comes to rape, the crucial sexual activity is intercourse and not oral sex.
For most cases that involve non-consensual sex allegations, the accused is prosecuted under both PC 287 forcible oral copulation and PC 261 rape. Rape is always a felony that carries a possible prison term of three, six, or eight years.
Oral Copulation With a Minor – PC 287
Apart from forcible oral copulation, PC 287 also defines the criminal act of orally copulating with a child. Oral copulation against a minor involves committing an oral copulation act with any party under 18 years, irrespective of whether that act is consensual.
Orally copulating on a child is prosecuted as a wobbler offense. However, the offense changes to automatically being a felony based on the victim and the accused’s ages, i.e., if the supposed victim is below 16 years and the accused is above 21 years. The penalties for a felony conviction include a prison term ranging between sixteen months and eight years.
Suppose you’re accused of forcible oral copulation of a child, and the DA doesn’t have concrete evidence that your act wasn’t consensual. In that case, your defense lawyer may be capable of having the charges reduced to oral copulation with a child. Oral copulation with a child carries less social stigma and lighter penalties.
Find Legal Representation for Forcible Oral Copulation Offense Near Me
Since the consequences of a forcible oral copulation conviction are so harsh, you want to seek help from a defense lawyer with a specialty in sex offense cases. Many times, these cases involve unreliable eyewitness testimony, mistaken identity, or incomplete evidence. A knowledgeable criminal defense lawyer will thoroughly scrutinize all the facts surrounding the case then build a defense strategy to adequately represent your legal rights.
Sex crimes attorneys at Darwish Law have practiced in the Santa Ana area for several years, developing a reputation with the prosecution and courts as experts in sex offense cases. We also boast an in-depth knowledge of the California sex crimes laws, which helps us achieve the best possible results. Contact our Santa Ana criminal lawyer at 714-887-4810 for a cost-free case evaluation.