California law defines oral copulation by force or fear as non-consensual contact between a person’s mouth and another person’s genitals or anus. This felony carries 3 to 14 years in prison depending on the case. Plus, you have to register for life as a tier three sex offender.
In order to help you better understand the law, our California criminal defense attorneys will address the following:
PC 287 makes oral copulation by force or fear a felony offense.
1. Definition
California Penal Code 287 PC defines oral copulation by force or fear as:
- Making any contact between the mouth of one person and the sexual organ or anus of another (penetration is not required),
- Without the other person’s consent,
- Through the use of force, violence, duress, menace, fear of immediate and unlawful bodily injury to someone, or a threat to retaliate against someone.
In short, oral copulation by force or fear is like oral sex rape.
You may also face PC 287 charges for orally copulating with a person who cannot legally consent because they are:
- too intoxicated to resist;
- unconscious of the nature of the act; or
- suffering from a mental disorder or developmental or physical disability.1
2. Penalties
Oral copulation by force or fear is a felony in California law. The potential penalties include:
- 3, 6, or 8 years in state prison or
- up to $10,000.
The judge may grant formal probation only in cases where the victim was disabled. Probation is not available if you used force of fear, or if the victim was unconscious or intoxicated.
If the victim was under 14 at the time of the alleged offense, the prison sentence for oral copulation of a minor is 8, 10, or 12 years in prison. If the victim was 14 to 17, the prison sentence is 6, 8, or 10 years.2
Oral copulation by force or fear in concert
Penalties increase for forced oral copulation when you acted with at least one other person (“in concert”). It does not matter whether you actively participated in the oral copulation or just aided the other person.
The potential state prison sentences for oral copulation by force or fear in concert are:
- 5, 7, or 9 years if the victim was not a minor;
- 8, 10, or 12 years if the victim was 14 to 17; and
- 10, 12, or 14 years if the victim was under 14.3
Sex offender registration requirement
A conviction of oral copulation by force or fear requires you to register for life as a tier three offender. This registration has to be renewed
- every year, within 5 working days of your birthday, and
- every time you move to a new residence.
Otherwise, you face an additional felony charge for failure to register as a sex offender.
Note that oral copulation with a person with a mental disorder or developmental or physical disability requires tier two sex offender registration. This means you can get off of the registry after 20 years.4
People convicted of oral copulation by force or fear must register as sex offenders in California.
3. Defenses
Here at Shouse Law Group, we have represented literally thousands of people charged with sex crimes such as oral copulation by force or fear. In our experience, the following defenses have proven very effective with prosecutors, judges, and juries.
- You were falsely accused: A good point of comparison for false accusations of oral copulation by force or fear is false accusations of rape. One FBI study concluded that almost 10% of rape allegations have no basis. Certain more specific studies suggest that the number could be closer to half!5
- You were the victim of mistaken witness identification: It is not unusual for victims to pick the wrong suspect out of a lineup, especially if they feel pressured by police to pick someone.
- The alleged “victim” actually consented: In many cases, there is a lot of ambiguity about whether the alleged “victim” actually consented. If you reasonably believed that they had consented, then you are not guilty.6 Plus, lack of consent can be very hard to prove beyond a reasonable doubt. Many cases come down to competing “he said/she said” allegations.
- Evidence was obtained as the result of an illegal search and seizure: We can ask the court to suppress any evidence the police may have obtained through an unlawful search or a coerced confession. If the judge agrees, the D.A. may be forced to drop the case for lack of proof.
- There is insufficient evidence of guilt “beyond a reasonable doubt”: Oral copulation by force or fear does not always produce physical evidence. Oftentimes, the state’s only evidence is the victim’s accusations. If this is the case, we may be able to use investigative tools—such as private polygraph tests—to convince the prosecutor that the case against you is too flimsy to pursue.
4. Statute of limitations
If the victim was under 18 at the time of the alleged oral copulation, the statute of limitations to press criminal charges ends when the victim turns 40 years old. Alternatively, the D.A. may bring charges within one year after:
- The victim files a police report alleging oral copulation against a minor;
- All other statutes of limitations have passed; and
- The allegation is corroborated by independent information (not including a mental health professional’s opinion)
If the victim was 18 or older at the time of the offense, the statute of limitations is 10 years after the alleged oral copulation.
Regardless of the victim’s age at the time of the offense, the D.A. may bring charges within one year after the suspect’s identity is established by DNA testing.7
5. Related offenses
- oral copulation on a minor (PC 287) – oral sex with a person under the age of consent
- rape (PC 261) – non-consensual sexual intercourse
- sexual battery (PC 243.4) – touching another person’s intimate parts without consent and for the purpose of sexual gratification, arousal, or abuse
- statutory rape (PC 261.5) – consensual sexual intercourse with a minor
Additional resources
Refer to the following for help:
- Association for the Treatment of Sexual Abusers (ATSA)— ATSA offers referrals, programs and resources for those suffering from sexual compulsions and sexual disorders.
- Sex Addicts Anonymous (SAA) – 12-step program to overcome sex addiction.
- Substance Abuse and Mental Health Services Administration (SAMHSA) – 24/7 confidential helpline offering referrals
- Sex Addiction – Article and guidance by AddictionHelp.org.
- Sexual Recovery Institute – Provides assessment and treatment for sexual addiction.
Legal References:
- Penal Code 287 PC (formerly Penal Code 288a / PC 288a) – Oral copulation by force or fear.
(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) (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.
(d) (1) 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 (A) when the act is accomplished against the victim’s will by means of force or fear of immediate and unlawful bodily injury on the victim or another person, or (B) 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, or (C) where 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 five, seven, or nine years. Notwithstanding the appointment of a conservator with respect to the victim 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 described under paragraph (3), that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving legal consent. (2) Any person who, while voluntarily acting in concert with another person, either personally or aiding and abetting that other person, commits an act of oral copulation upon a victim who is under 14 years of age, when the act is accomplished against the victim’s will by means of force or fear of immediate and unlawful bodily injury on the victim or another person, shall be punished by imprisonment in the state prison for 10, 12, or 14 years. (3) Any person who, while voluntarily acting in concert with another person, either personally or aiding and abetting that other person, commits an act of oral copulation upon a victim who is a minor 14 years of age or older, when the act is accomplished against the victim’s will by means of force 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. (4) This paragraph does not preclude prosecution under Section 269, Section 288.7, or any other provision of law
(e) Any person who participates in an act of oral copulation while confined in any state prison, as defined in Section 4504 or in any local detention facility as defined in Section 6031.4, shall be punished by imprisonment in the state prison, or in a county jail for a period of not more than one year.
(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.
(j) Any person who commits an act of oral copulation, where the victim submits under the belief that the person committing the act is someone known to the victim other than the accused, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief, shall be punished by imprisonment in the state prison for a period of 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.
(m) In addition to any punishment imposed under this section, the judge may assess a fine not to exceed seventy dollars ($70) against any person who violates this section, with the proceeds of this fine to be used in accordance with Section 1463.23. The court shall, however, take into consideration the defendant’s ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision.Judicial Council of California Criminal Jury Instructions (“CALCRIM”) 1015 – Oral Copulation by Force, Fear, or Threats (Pen. Code, § 287(c)(2) & (3), (k)).
The defendant is charged [in Count ] with oral copulation by force [in violation of Penal Code section 287]. To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant committed an act of oral copulation with someone else;
2. The other person did not consent to the act;
AND
3. The defendant accomplished the act by <Alternative 3A – force or fear>
[force, violence, duress, menace, or fear of immediate and unlawful bodily injury to someone.]
<Alternative 3B – future threats of bodily harm>
[threatening to retaliate against someone when there was a reasonable possibility that the threat would be carried out. A threat to retaliate is a threat to kidnap, unlawfully restrain or confine, or inflict extreme pain, serious bodily injury, or death.]
<Alternative 3C – threat of offıcial action>
[threatening to use the authority of a public office to incarcerate, arrest, or deport someone. A public official is a person employed by a government agency who has the authority to incarcerate, arrest, or deport. The other person must have reasonably believed that the defendant was a public official even if (he/she) was not.]
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.
[In order to consent, a person must act freely and voluntarily and know the nature of the act.]
[Evidence that the defendant and the person (dated/were married/had been married) is not enough by itself to constitute consent.]
[Evidence that the person (requested/suggested/communicated) that the defendant use a condom or other birth control device is not enough by itself to constitute consent.]
[An act is accomplished by force if a person uses enough physical force to
overcome the other person’s will.]
[Duress means a direct or implied threat of force, violence, danger, hardship, or retribution that causes a reasonable person to do [or submit to] something that he or she would not otherwise do [or submit to].
When deciding whether the act was accomplished by duress, consider all the circumstances, including the age of the other person and (his/her) relationship to the defendant.]
[Retribution is a form of payback or revenge.]
[Menace means a threat, statement, or act showing an intent to injure someone.]
[An act is accomplished by fear if the other person is actually and reasonably afraid [or (he/she) is actually but unreasonably afraid and the defendant knows of (his/her) fear and takes advantage of it].]
[The defendant is not guilty of forcible oral copulation if he or she actually and reasonably believed that the other person consented to the act. The People have the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe that the person consented. If the People have not met this burden, you must find the defendant not guilty.]See also People v. Leal (2004) 33 Cal.4th 999, 16 Cal.Rptr.3d 869, 94 P.3d 1071. People v. Pitmon (1985) 170 Cal.App.3d 38, 216 Cal.Rptr. 221. People v. Grim (1992) 9 Cal.App.4th 1240, 11 Cal.Rptr.2d 884. People v. Reyes (1984) 153 Cal.App.3d 803, 200 Cal.Rptr. 651. People v. Iniguez (1994) 7 Cal.4th 847, 30 Cal.Rptr.2d 258, 872 P.2d 1183. People v. Griffın (2004) 33 Cal.4th 1015, 16 Cal.Rptr.3d 891, 94 P.3d 1089. People v. Guido (2005) 125 Cal.App.4th 566, 22 Cal.Rptr.3d 826. People v. White (2005) 133 Cal.App.4th 473, 34 Cal.Rptr.3d 848. People v. Ward (1986) 188 Cal.App.3d 459, 233 Cal.Rptr. 477. People v. Cicero (1984) 157 Cal.App.3d 465, 204 Cal.Rptr. 582. People v. Cardenas (1994) 21 Cal.App.4th 927, 26 Cal.Rptr.2d 567. In re John Z. (2003) 29 Cal.4th 756, 128 Cal.Rptr.2d 783, 60 P.3d 183. - Penal Code 287 PC. See also People v. Barton, (2020, Court of Appeal of California, Fourth Appellate District, Division One) 56 Cal. App. 5th 496, 270 Cal. Rptr. 3d 500. See also People v. Saavedra, (2018, Court of Appeal of California, Fifth Appellate District) 24 Cal. App. 5th 605, 234 Cal. Rptr. 3d 544. 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, 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 [such as oral copulation by force or fear], in addition to the imprisonment prescribed.”
- Same.
- PC 290. PC 290.018.
- Emily Bazelon and Rachael Larimore, How Often Do Women Falsely Cry Rape?, Slate, Oct. 1, 2009. See also People v. Arredondo (Cal. App. 4th Dist., 2017), 222 Cal. Rptr. 3d 42, 13 Cal. App. 5th 950. Bruce Gross, False Rape Allegations: An Assault On Justice, The Forensic Examiner, Sept. 15, 2012.
- See also People v. Key (1984) 153 Cal.App.3d 888, 203 Cal.Rptr. 144. see also People v. Young (1987) 190 Cal.App.3d 248, 235 Cal.Rptr. 361.
- Penal Code 801.1(a) & (b) PC; Penal Code 803(f) & (g) PC.