Oral Copulation with a Minor
(California Penal Code 288a PC)

Consensual oral copulation with a minor—that is, a person under eighteen (18)—is a crime in California. California Penal Code 288a describes the California sex crime of “oral copulation with a minor.”1

It may shock you to learn that consensual oral sex can be a crime in California.

The way to think about the crime of “oral copulation with a minor” is with reference to California's statutory rape laws—which make it a crime to have sexual intercourse with a minor, even if it is consensual.2

It is also important to note that some instances of oral sex with a minor—for instance, if the minor is very intoxicated or mentally disabled—could lead to charges for the more serious crime of oral copulation by force or fear.3

Examples

Here are some examples of scenarios that could lead to oral copulation on a minor charges in California:

  • A gay male 16-year-old gives his 17-year-old boyfriend a “blow job;”
  • A 23-year-old man performs oral sex on a 15-year-old female he met at a party; and
  • A 30-year-old female teacher engages in oral sex with her 13-year-old male student.

Penalties

The penalties for PC 288a oral copulation with a minor depend on the ages of both the defendant and the “victim” at the time when the oral sex occurred.4

If the “victim” is sixteen (16) or older OR the defendant is twenty-one (21) or younger, oral copulation with a minor will be a wobbler in California law.

This means that it may be charged as either a misdemeanor or a felony. The maximum misdemeanor sentence is one (1) year in county jail, and the potential felony sentence is sixteen (16) months, two (2) years or three (3) years in California state prison.5

But if the victim is under 16 AND the defendant is over 21, oral copulation with a minor must be charged as a felony—with a potential state prison sentence of sixteen (16) months, two (2) years or three (3) years.6

And if the victim is under fourteen (14) AND the defendant is more than ten (10) years older than him/her, then the potential prison sentence rises to three (3), six (6) or eight (8) years.7

Ocff_handcuffs-optimized
Oral copulation with a minor can lead to a significant prison sentence.

Perhaps worst of all, a conviction for oral copulation with a minor in California subjects you to California's lifelong sex offender registration requirement.8

This means that if you are convicted under Penal Code 288a, you must register with the state at least every year for the rest of your life—or else face additional misdemeanor or felony charges for failure to register as a sex offender.9

Legal defenses

If you are charged with oral copulation with a minor, an experienced California sex crimes defense attorney can help you safeguard your rights—and protect your future.

Two common legal defenses that can help you beat California Penal Code 288a charges are:

  • You honestly and reasonably believed the minor was over 18; and
  • You were falsely accused.

In order to help you better understand the California crime of oral copulation with a minor, our California criminal defense attorneys will address the following:

1. Legal Definition of Oral Copulation with a Minor

1.1. Juvenile defendants accused of oral copulation with a minor

2. Penalties for Penal Code 288a Oral Copulation with a Minor

2.1. Victim 16 or older; defendant 21 or younger
2.2. Victim under 16 and defendant over 21
2.3. Victim under 14
2.4. Sex offender registration
2.5. Expungement of a PC 288a conviction

3. Legal Defenses to Oral Copulation with a Minor Charges

4. Penal Code 288a and Related Offenses

4.1. Penal Code 288a oral copulation by force or fear
4.2. Penal Code 261.5 statutory rape
4.3. Penal Code 288 lewd acts with a minor

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

1. Legal Definition of Oral Copulation with a Minor

The legal definition of oral copulation with a minor consists of the following “elements of the crime” (that is facts that the prosecutor must prove in order for you to be guilty of this offense):

  1. You participated in an act of “oral copulation” with another person, and
  2. The other person was under the age of eighteen (18) when this occurred.10
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You cannot be convicted under Penal Code 288a PC unless your behavior meets the legal definition of oral copulation with a minor.

Let's take a better look at the key terms of this legal definition:

Oral copulation

Oral copulation is defined as any contact—no matter how slight—between the mouth of one person, and the sexual organ or anus of another. Neither penetration nor ejaculation/orgasm is required.11

For males, the sexual organ includes both the penis and the scrotum.12

Example: Charlie, an 18-year-old high school senior, is dating Melissa, a 15-year-old sophomore.

One night while they are making out, Charlie removes Melissa's underwear and kisses her genitals.

Charlie has just committed the crime of oral copulation with a minor—even though there was no penetration and no orgasm involved.

Person under 18

Under California law, a person is under 18 until the first minute of their eighteenth birthday.13

Example: Dan is 17, and his girlfriend Kelly is 19.

Kelly wants to give Dan his first “blow job.” But she is taking a criminal justice class in college and does not want to violate California's oral copulation with a minor laws.

So Kelly has Dan stay up until midnight the night before he turns 18. At 12:01 a.m. on his 18th birthday, she performs oral sex on him.

Kelly is not guilty of oral copulation with a minor because of her careful timing.

1.1. Juvenile defendants accused of oral copulation with a minor

You can be charged with oral copulation even if you were a minor (under 18) yourself when the oral sex act occurred—so long as the prosecution can prove that you understood that what you were doing was “wrong.”14

Ocm_juveniledefendant-optimized
It is not uncommon for oral copulation with a minor cases to be tried in juvenile court.

According to Burbank criminal defense attorney Neil Shouse15:

“Charging a minor with oral copulation on a minor can seem irrational—since the defendant him- or herself is technically a “victim” of the crime too. And most prosecutors in California don't make it a priority to prosecute teenagers for engaging in oral sex with other teenagers. But that doesn't mean it can't happen—and it does.”

An oral copulation on a minor case where the defendant is also a minor will probably be tried in the California juvenile court system.

Example: Paul, a 13-year-old boy, convinces Darren, a 9-year-old, to suck his penis briefly.

The prosecution is able to show that adults in Paul's life had taught him that sexual activity such as this is wrong.

Therefore, Paul may be convicted in juvenile court of oral copulation with a minor.16

2. Penalties for Penal Code 288a Oral Copulation with a Minor

The penalties for Penal Code 288a PC “oral copulation with a minor” vary depend on the age of both

  1. the so-called “victim,” and
  2. the defendant.
2.1. Victim 16 or older; defendant 21 or younger

PC 288a oral copulation with a minor is a “wobbler” if one of the following is true:

  1. The “victim” was sixteen (16) or older when the alleged oral copulation occurred; OR
  2. The defendant was twenty-one (21) or younger when the alleged oral copulation occurred.17
Ocm_handcuffed_teen-optimized
Even oral copulation with a minor close to the defendant's own age can lead to a jail sentence.

A “wobbler” is a California crime that may be tried as EITHER a misdemeanor or a felony, depending on

  • the circumstances giving rise to the charges, and
  • the defendant's criminal history.

If oral copulation with a minor is charged as a misdemeanor, then the potential penalties include:

If Penal Code 288a under these circumstances is charged as a felony, the potential penalties include:

  • Felony (formal) probation;
  • Sixteen (16) months, two (2) years or three (3) years in state prison; and/or
  • A fine of up to ten thousand dollars ($10,000).19
2.2. Victim under 16 and defendant over 21

Oral copulation with a minor is necessarily a felony if both of the following are true:

  1. The “victim” was younger than sixteen (16) at the time of the alleged sex act; AND
  2. The defendant was older than twenty-one (21) at the time of the alleged sex act.20

The potential penalties in this sort of case are the felony penalties listed in Section 2.1 above.

2.3. Victim under 14

The penalties for felony PC 288a oral copulation with a minor are increased if both of the following are true:

  1. The victim was younger than fourteen (14) at the time of the alleged oral copulation; AND
  2. The defendant is more than ten (10) years older than the victim.21

If both of these things are true, then the potential state prison sentence for oral copulation on a minor increases to three (3), six (6) or eight (8) years.22

2.4. Sex offender registration

A conviction for oral copulation with a minor will subject you to California's lifelong sex offender registration requirement.23

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An oral copulation with a minor conviction subjects you to California's sex offender registration requirement.

The Sex Offender Registration Act requires any convicted sex offender who lives in California to register with the police of the city or county where they live. This registration has to be renewed:

  1. Every year, within five (5) working days of the person's birthday, and
  2. Every time that person moves to a new residence.24

If you don't comply with these burdensome requirements, then you will be charged with:

  • Misdemeanor failure to register, if your conviction was for oral copulation with a minor as a misdemeanor; or
  • Felony failure to register, if your conviction was for oral copulation with a minor as a felony.25
2.5. Expungement of a PC 288a conviction

If you are convicted of oral copulation with a minor as either a misdemeanor or a felony, you may apply for an expungement of your criminal record, provided that all of the following are true:

  1. You did not serve time in state prison as a result of this conviction;
  2. You have successfully completed probation; and
  3. You are not currently charged with, on probation for, or serving a sentence for a criminal offense.26

However, you will NOT be eligible for an expungement if your conviction was for oral copulation with a minor under the age of 14 who is more than 10 years younger than you.27

And even though there are many benefits of an expungement of your PC 288a conviction, it will not relieve you of your duty to register as a sex offender for an oral copulation with a minor conviction.28

3. Legal Defenses to Oral Copulation with a Minor Charges

The best way to avoid the stigma associated with a sex crime conviction is to fight the charges at the outset—with all the resources at your disposal.

Ocm_unfair_law-optimized
There are ways to fight charges under California's unnecessarily punitive "oral copulation with a minor" law.

A talented sex crimes defense attorney may be able to help you beat the charges by relying on one of the following common legal defenses:

You actually and reasonably believed the minor was over 18

You are not guilty of oral copulation with a minor if you actually believed that the minor was over 18, and that belief was reasonable.29

(This defense will not apply, however, if you are accused of oral copulation with a minor under 14 who is more than 10 years younger than you.30)

This defense is a more specific version of the general legal defense of mistake of fact.

Evidence that can help support this defense to Penal Code 288a charges includes:

  • Statements by the “victim” that s/he was over 18;
  • The victim's appearance, clothes, makeup, etc.; and
  • The place or context in which you met him/her (for example, at a bar that requires patrons to show an ID).

You were falsely accused

People are falsely accused of oral copulation with a minor every day.

Frequently, the accuser is someone who had a close relationship with the defendant—and may want to see him/her get in trouble because of jealousy, a romantic relationship gone sour, etc.

If this is the case, your criminal defense attorney may be able to use investigative tools—such as private polygraph tests—to convince the prosecutor that you are being framed.

4. Penal Code 288a and Related Offenses

Some of the most common similar offenses to Penal Code 288a oral copulation on a minor are:

4.1. Penal Code 288a oral copulation by force or fear

Penal Code 288a also makes it a crime to engage in oral copulation with someone else, when any of the following is true:

  • The oral sex is accomplished through the use of force, violence, duress, menace, fear of immediate and unlawful bodily injury to someone, or a threat to retaliate against someone;
  • The other person is too intoxicated to resist;
  • The other person is unconscious of the nature of the act; or
  • The other person is unable to legally consent because of a mental disorder or developmental or physical disability.31

So if you have nonconsensual oral sex with a minor—OR if you have what you believe to be consensual oral sex with a minor who is intoxicated, unconscious, or mentally or developmentally disabled—then you may be charged with “oral copulation by force or fear” instead.

Oral copulation by force or fear carries harsher penalties than oral copulation with a minor. It is always a felony—and the potential state prison sentence ranges from three (3) to as many as twelve (12) years.32

4.2. Penal Code 261.5 statutory rape
Ocm_teenlove-optimized
Teen romances gone sour can lead to oral copulation of a minor AND statutory rape charges.

Penal Code 261.5 statutory rape is a very similar offense to oral copulation with a minor. The only major difference is that it occurs when you have sexual intercourse—not oral sex—with a minor.33

If you are involved in a consensual sexual relationship with a minor—and something goes wrong—you may find yourself facing charges for both PC 288a oral copulation and PC 261.5 statutory rape.

The penalties for statutory rape depend on the relative ages of the defendant and the “victim.” The crime is:

  • A misdemeanor if the age difference between the two is three (3) years or less;
  • A wobbler with a maximum jail sentence of three (3) years if the defendant is more than 3 years older than the “victim”; and
  • A wobbler with a maximum jail sentence of four (4) years if the defendant is older than 21 and the “victim” is under 16.34

(You may notice that the law is slightly easier on defendants who engage in sexual intercourse with a minor than on those who engage in oral sex with a minor—an old-fashioned and pretty irrational distinction, especially given that only the former can lead to teen pregnancy!35)

4.3. Penal Code 288 lewd acts with a minor

The crime of lewd acts with a minor consists of touching a minor somewhere on his/her body for sexual purposes.36

Unlike oral copulation with a minor, these acts (if they are consensual) are only a crime if either of the following is true:

  • The minor is under 14 when they occur; OR
  • The minor is 14 or 15 when they occur, and the defendant is at least 10 years older than him/her.37

Lewd acts with a child is a wobbler if the minor is 14 or 15, and a felony if s/he is younger than 14.38

Call us for help…

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For questions about the crime of oral copulation with a minor in California, or to discuss your case confidentially with one of our California criminal defense attorneys, do not hesitate to contact us at Shouse Law Group.

We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

For more information on Nevada “statutory sexual seduction” laws, please see our page on Nevada “statutory sexual seduction” laws.

Online Resources:

Association for the Treatment of Sexual Abusers (ATSA) -- ATSA offers referrals, programs and resources for those suffering from sexual compulsions and sexual disorders.

Legal References:


1 Penal Code 288a PC – Oral copulation with a minor. (“(a) Oral copulation is the act of copulating the mouth of one person with the sexual organ or anus of another person. (b) (1) Except as provided in Section 288, any person who participates in an act of oral copulation with another person who is under 18 years of age shall be punished by imprisonment in the state prison, or in a county jail for a period of not more than one year. (2) Except as provided in Section 288, any person over 21 years of age who participates in an act of oral copulation with another person who is under 16 years of age is guilty of a felony. (c) (1) Any person who participates in an act of oral copulation with another person who is under 14 years of age and more than 10 years younger than he or she shall be punished by imprisonment in the state prison for three, six, or eight years.”)

2 Penal Code 261.5 PC -- Unlawful sexual intercourse with person under 18; age of perpetrator; civil penalties [compare to law on oral copulation with a minor]. ("(a) Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor. For the purposes of this section, a "minor" is a person under the age of 18 years and an "adult" is a person who is at least 18 years of age.")

3 Penal Code 288a PC – Oral copulation by force or fear [compare to law on oral copulation with a minor]. (“(f) Any person who commits an act of oral copulation, and the victim is at the time unconscious of the nature of the act and this is known to the person committing the act, shall be punished by imprisonment in the state prison for a period of three, six, or eight years. As used in this subdivision, "unconscious of the nature of the act" means incapable of resisting because the victim meets one of the following conditions: (1) Was unconscious or asleep. (2) Was not aware, knowing, perceiving, or cognizant that the act occurred. (3) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraud in fact. (4) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraudulent representation that the oral copulation served a professional purpose when it served no professional purpose. (g) Except as provided in subdivision (h), any person who commits an act of oral copulation, and the victim is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act, shall be punished by imprisonment in the state prison, for three, six, or eight years. Notwithstanding the existence of a conservatorship pursuant to the provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving consent. (h) Any person who commits an act of oral copulation, and the victim is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act, and both the defendant and the victim are at the time confined in a state hospital for the care and treatment of the mentally disordered or in any other public or private facility for the care and treatment of the mentally disordered approved by a county mental health director, shall be punished by imprisonment in the state prison, or in a county jail for a period of not more than one year. Notwithstanding the existence of a conservatorship pursuant to the provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving legal consent. (i) Any person who commits an act of oral copulation, where the victim is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused, shall be punished by imprisonment in the state prison for a period of three, six, or eight years.”)

4 Penal Code 288a PC – Oral copulation with a minor, endnote 1, above.

5 Same.

6 Same.

7 Same.

8 Penal Code 290 PC – Sex Offender Registration Act. (“(a) Sections 290 to 290.024, inclusive, shall be known and may be cited as the Sex Offender Registration Act. All references to “the Act” in those sections are to the Sex Offender Registration Act. (b) Every person described in subdivision (c), for the rest of his or her life while residing in California, or while attending school or working in California, as described in Sections 290.002 and 290.01, shall be required to register with the chief of police of the city in which he or she is residing, or the sheriff of the county if he or she is residing in an unincorporated area or city that has no police department, and, additionally, with the chief of police of a campus of the University of California, the California State University, or community college if he or she is residing upon the campus or in any of its facilities, within five working days of coming into, or changing his or her residence within, any city, county, or city and county, or campus in which he or she temporarily resides, and shall be required to register thereafter in accordance with the Act. (c) The following persons shall be required to register: Any person who, since July 1, 1944, has been or is hereafter convicted in any court in this state or in any federal or military court of a violation of . . . Section . . . 288a [oral copulation with a minor] . . . .”)

9 California Penal Code 290.018 PC – Penalties for [failure to register as a sex offender]. (“(a) Any person who is required to register under the Act based on a misdemeanor conviction or juvenile adjudication [such as a conviction for oral copulation with a minor] who willfully violates any requirement of the act is guilty of a misdemeanor punishable by imprisonment in a county jail not exceeding one year. (b) Except as provided in subdivisions (f), (h), and (j), any person who is required to register under the act based on a felony conviction [such as a conviction for oral copulation with a minor] or juvenile adjudication who willfully violates any requirement of the act or who has a prior conviction or juvenile adjudication for the offense of failing to register under the act and who subsequently and willfully violates any requirement of the act is guilty of a felony and shall be punished by imprisonment in the state prison for 16 months, or two or three years.”)

10 Judicial Council of California Criminal Jury Instructions (“CALCRIM”) 1082 – Oral Copulation With Person Under 18 (Pen. Code, § 288a(b)(1)). (“The defendant is charged [in Count ] with oral copulation with a person who was under the age of 18 [in violation of Penal Code section 288a(b)(1)]. To prove that the defendant is guilty of this crime, the People must prove that: 1. The defendant participated in an act of oral copulation with another person; AND 2. The other person was under the age of 18 when the act was committed.”)

11 CALCRIM 1082 – Oral Copulation With Person Under 18 (Pen. Code, § 288a(b)(1)). (“Oral copulation is any contact, no matter how slight, between the mouth of one person and the sexual organ or anus of another person. Penetration is not required.”)

12 See CALCRIM 1015 – Oral Copulation by Force, Fear, or Threats (Pen. Code, § 288a(c)(2) & (3), (k)), Related Issues [also relevant to oral copulation with a minor law]. (“Sexual Organ A man's “sexual organ” for purposes of Penal Code section 288a includes the penis and the scrotum.”)

13 CALCRIM 1082 – Oral Copulation With Person Under 18 (Pen. Code, § 288a(b)(1)). (“[Under the law, a person becomes one year older as soon as the first minute of his or her birthday has begun.]”)

14 In re Paul C. (1990) 221 Cal.App.3d 43, 49. (“We conclude a minor under age 14 may be adjudged responsible for having committed the subject offenses [oral copulation of a minor] upon clear proof of the minor's knowledge of wrongfulness as required by section 26.”)

See also In re T.A.J. (1998) 62 Cal.App.4th 1350, 1352-53. (“Penal Code section 261.5, subdivision (b) [California's statutory rape law; comparable to oral copulation with a minor law], makes it a misdemeanor for “any person” to have sexual intercourse with a minor who is no more than three years older or younger than the perpetrator. Does this statute infringe a constitutional privacy right of minors to engage in consensual sexual intercourse? Is the statute unconstitutional as applied to appellant who was a minor himself at the time of the alleged offense, and therefore, an individual within the class of persons protected by the statute? In affirming the finding of the trial court determining appellant to be a ward of the court, we answer both questions in the negative.”)

15 Our Burbank criminal defense attorneys have successfully defended numerous clients charged with a wide range of California sex crimes, including Penal Code 288a oral sex with a minor.

16 Based on the facts of In re Paul C., endnote 14, above.

17 Penal Code 288a PC – Oral copulation with a minor, endnote 1, above.

18 Same.

See also Penal Code 672 PC. (“Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed [such as oral copulation of a minor], the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed.”)

19 Same.

See also Penal Code 18 PC. (“(a) Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a felony [is punishabsuch as oral copulation on a minor] le by imprisonment for 16 months, or two or three years in the state prison unless the offense is punishable pursuant to subdivision (h) of Section 1170.”)

20 Penal Code 288a PC – Oral copulation with a minor, endnote 1, above.

21 Same.

22 Same.

23 Penal Code 290 PC – Sex Offender Registration Act [applies to convictions for oral copulation with a minor], endnote 8, above.

24 See same.

25 California Penal Code 290.018 PC – Penalties for [failure to register as a sex offender; applies to oral copulation with a minor convictions], endnote 9, above.

26 Penal Code 1203.4 PC – California expungement law [can apply to Penal Code 288a oral copulation with a minor convictions]. (“a) In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section, the defendant shall, at any time after the termination of the period of probation, if he or she is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted, except as provided in Section 13555 of the Vehicle Code. (b) Subdivision (a) of this section does not apply to any misdemeanor that is within the provisions of subdivision (b) of Section 42001 of the Vehicle Code, to any violation of [the California Penal Code] subdivision (c) of Section 286, Section 288, subdivision (c) of Section 288a [California's law against oral copulation with a child], Section 288.5, or subdivision (j) of Section 289, any felony conviction pursuant to subdivision (d) of Section 261.5, or to any infraction.”)

27 Same.

28 Penal Code 290.007 PC. (“("Any person required to register pursuant to any provision of the Act [including for an oral copulation on a minor conviction] shall register in accordance with the Act, regardless of whether the person's conviction has been dismissed pursuant to [California Penal Code] Section 1203.4, unless the person obtains a certificate of rehabilitation and is entitled to relief from registration pursuant to Section 290.5.")

29 CALCRIM 1082 – Oral Copulation With Person Under 18 (Pen. Code, § 288a(b)(1)). (“[The defendant is not guilty of this crime if (he/she) reasonably and actually believed that the other person was age 18 or older. The People must prove beyond a reasonable doubt that the defendant did not reasonably and actually believe that the other person was at least 18 years old. If the People have not met this burden, you must find the defendant not guilty of this crime.]”)

30 See People v. Olsen (1984) 36 Cal.3d 638, 649. (“The legislative purpose of section 288 [and, by extension, Penal Code 288a(c)(1)] would not be served by recognizing a defense of reasonable mistake of age. Thus, one who commits lewd or lascivious acts with a child, even with a good faith belief that the child is 14 years of age or older, does so at his or her peril.”)

31 Penal Code 288a PC – Oral copulation by force or fear [compare to definition of oral copulation with a minor]. (“ . . . (c) . . . (2) (A) Any person who commits an act of oral copulation when the act is accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for three, six, or eight years. (B) Any person who commits an act of oral copulation upon a person who is under 14 years of age, when the act is accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, shall be punished by imprisonment in the state prison for 8, 10, or 12 years. (C) Any person who commits an act of oral copulation upon a minor who is 14 years of age or older, when the act is accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, shall be punished by imprisonment in the state prison for 6, 8, or 10 years. (D) This paragraph does not preclude prosecution under Section 269, Section 288.7, or any other provision of law. (3) Any person who commits an act of oral copulation where the act is accomplished against the victim's will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat, shall be punished by imprisonment in the state prison for three, six, or eight years. . . . (k) Any person who commits an act of oral copulation, where the act is accomplished against the victim's will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official, shall be punished by imprisonment in the state prison for a period of three, six, or eight years. As used in this subdivision, "public official" means a person employed by a governmental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to be a public official. (l) As used in subdivisions (c) and (d), "threatening to retaliate" means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death.”)

See also endnote 3, above.

32 Same.

33 Penal Code 261.5 PC -- Unlawful sexual intercourse with person under 18; age of perpetrator; civil penalties [compare to law on oral copulation with a minor], endnote 2, above.

34 Penal Code 261.5 PC -- Unlawful sexual intercourse with person under 18; age of perpetrator; civil penalties [compare to law on oral copulation with a minor]. (“(b) Any person who engages in an act of unlawful sexual intercourse with a minor who is not more than three years older or three years younger than the perpetrator, is guilty of a misdemeanor. (c) Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170. (d) Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.”)

35 See Johnson v. Dept. of Justice (2015) 2015 WL 363184 (holding that it does not violate equal protection to impose harsher penalties for oral copulation with a minor than for statutory rape].

36 Penal Code 288 – Lewd acts with a child [compare to law on oral copulation with a minor]. (“(a) Except as provided in subdivision (i), any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years. . . . (c) (1) Any person who commits an act described in subdivision (a) with the intent described in that subdivision, and the victim is a child of 14 or 15 years, and that person is at least 10 years older than the child, is guilty of a public offense and shall be punished by imprisonment in the state prison for one, two, or three years, or by imprisonment in a county jail for not more than one year. In determining whether the person is at least 10 years older than the child, the difference in age shall be measured from the birth date of the person to the birth date of the child.”)

37 Same.

38 Same.

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