Oral Copulation by Force or Fear
Penal Code 288a PC

In order to help you better understand the California crime of oral copulation by fear or force, our California criminal defense attorneys will address the following:

1. Legal Definition of Oral Copulation by Force or Fear

1.1. Oral copulation by force or fear
1.2. Oral copulation of an intoxicated person
1.3. Oral copulation of an unconscious person
1.4. Oral copulation of a disabled person

2. Penalties for Penal Code 288a Oral Copulation by Force or Fear

2.1. Oral copulation by force or fear in concert
2.2. Sex offender registration requirement

3. Legal Defenses to Oral Copulation by Force or Fear Charges

4. Penal Code 288a and Related Offenses

4.1. Penal Code 288a oral copulation on a minor
4.2. Penal Code 261 rape
4.3. Penal Code 243.4 sexual battery

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

The California sex crime of “oral copulation by force or fear” is defined in California Penal Code 288a.1

The basic legal definition of oral copulation by force or fear is:

  1. Making any contact between the mouth of one person and the sexual organ or anus of another (this is the legal definition of “oral copulation”),
  2. Without the other person's consent,
  3. Through the use of force, violence, duress, menace, fear of immediate and unlawful bodily injury to someone, or a threat to retaliate against someone.2

And a person may also face charges under Penal Code 288a PC for:

  • Orally copulating with a person who is too intoxicated to resist;
  • Orally copulating with a person who is unconscious of the nature of the act; or
  • Orally copulating with a person who is unable to legally consent because of a mental disorder or developmental or physical disability.3

Examples

Here are some examples of scenarios that could lead to oral copulation by force or fear charges in California:

  • A man threatens to cut another man with a knife unless that man performs oral sex on him;
  • A woman kisses the genitals of a man who is drunk and passed out at a party; and
  • A man threatens to kidnap a woman's child unless she performs oral sex on him.
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Oral copulation by force or fear includes acts committed through violence or forcible restraint.

Penalties

PC 288a oral copulation by force or fear is a felony in California law.

In most cases, it carries a potential California state prison sentence of three (3), six (6) or eight (8) years, and/or a fine of up to ten thousand dollars ($10,000).4

Perhaps worst of all, an oral copulation by force or fear conviction in California subjects you to California's lifelong sex offender registration requirement.5

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 felony charges for failure to register as a sex offender.6

Legal defenses

Given these penalties—and the stigma of a sex crime conviction—it goes without saying that you will want to fight oral copulation by force or fear charges as aggressively as possible.

Some common legal defenses that you and your criminal defense lawyer can use to try to beat these charges include:

  • You were falsely accused,
  • The alleged “victim” actually consented, and
  • There is insufficient evidence to convict you of Penal Code 288a.
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Certain common legal defenses can be especially useful in fighting Penal Code 288a charges.

1. Legal Definition of Oral Copulation by Force or Fear

The legal definition of “oral copulation by force or fear” depends on the variation of this offense with which you are charged.

1.1. Oral copulation by force or fear

The basic form of oral copulation by force or fear has the following “elements of the crime” (that is, facts that the prosecutor must prove for you to be guilty of this offense):

  1. You committed an act of oral copulation with someone else;
  2. That person did not consent to the act; and
  3. You accomplished the act by force, violence, duress, menace, fear of immediate and unlawful bodily injury, or future threats of bodily harm.7

Below, we will explain the meaning of some of these elements a bit more clearly.

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The definition of "oral copulation by force or fear" is fairly broad.

An act of oral copulation

Under Penal Code 288a PC, “oral copulation” simply means 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.8

For a man, the phrase “sexual organ” means both the penis and the scrotum.9

Example: Joseph lures Michelle, an 18-year-old runaway, to a hotel room.

Joseph then threatens Michelle with a knife and forces her to lick his scrotum.

Joseph's penis never penetrates Michelle's mouth. But his behavior still meets the legal definition of oral copulation by force or fear.10

Lack of consent

Just as with Penal Code 261 rape and other similar sex crimes, lack of consent is a key element of the California crime of oral copulation by force or fear.11

In order to consent to oral sex, a person must both

  • act freely and voluntarily, and
  • understand the nature of their act.12

And even if a person initially consents to oral sex, that consent may be withdrawn. If it is, the other person could be guilty of oral copulation by force or fear if s/he continues the act.13

Example: John and Carrie, two college students, are engaged in consensual oral sex.

In the middle of the sex act, Carrie tells John that she wants to stop. But he continues to perform oral sex on her, physically overpowering her when she struggles.

John is probably guilty of oral copulation by force or fear.

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The fact that two people are married is not considered sufficient to establish consent under California oral copulation by force or fear law.

The following facts, by themselves, will not be enough to prove that the alleged victim actually consented to oral copulation:

  • The defendant and the victim were dating or had dated,
  • The defendant and the victim were or had been married, or
  • The victim requested that the defendant use a condom.14

However, if the defendant actually and reasonably believed that the alleged “victim” had given his/her consent to the sex act, then s/he is not guilty under California Penal Code 288a.15

Example: Pablo and Richard are two gay males who have been dating for several months.

One morning, after Pablo has spent the night at Richard's apartment, Richard performs oral sex on him without asking him first. Pablo does not say anything to Richard to suggest that he has not consented to that sex act.

Pablo later tries to claim that Richard performed oral copulation by force or fear on him. But Richard may be able to defend himself by arguing that he actually and reasonably believed that Pablo had consented.

By force or fear

The “force or fear” element of “oral copulation by force or fear” in California can actually consist of any of the following:

  1. Force—meaning just enough physical force to overcome the other person's will;
  2. Violence;
  3. Duress—meaning a direct or implied threat of force, violence, danger, hardship, or retribution that would cause a reasonable person to do something s/he would not otherwise do;
  4. Menace—meaning a threat, statement, or act showing an intent to injure someone;
  5. A threat of immediate and unlawful bodily injury; and/or
  6. A threat to retaliate if the victim does not submit—by kidnapping, unlawfully restraining or confining, or inflicting extreme pain, serious bodily injury, or death on the victim or a third party.16

Example: Victor tells his girlfriend Marie that he will kill her parents if she does not perform oral sex on him. He shows her the gun that he claims he will use to do so.

Victor may be guilty of oral sex by force or fear—because he forced Marie to engage in oral sex by using a threat of retaliation.

1.2. Oral copulation of an intoxicated person
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Oral copulation with someone who is too drunk to consent can lead to charges under Penal Code 288a PC.

You may also be guilty of oral copulation by force or fear if you commit oral copulation with another person, and both of the following are true:

  1. The other person is incapable of resisting because s/he has consumed drugs, alcohol, or another intoxicating substance; and
  2. You knew or reasonably should have known that s/he could not consent because of this.17

Obviously, there is a lot of potential for gray areas here—since many sexual encounters take place when one or both parties are intoxicated.

But for purposes of Penal Code 288a PC, a person is considered too intoxicated to consent if s/he is unable to understand and weigh the physical nature of the act, its moral character, and its probable consequences.18

Example: Rachel and Will meet at a bar, after they have both had a large amount to drink. They go back to Rachel's apartment and smoke marijuana together.

Will is so drunk and high that he is slurring his words and nodding off in the middle of sentences. Rachel begins to perform oral sex on him.

There is a chance that Rachel is guilty of oral copulation of an intoxicated person—because there is an argument that she should know that Will is too intoxicated to consent.

1.3. Oral copulation of an unconscious person

You may also be convicted of Penal Code 288a, California's oral copulation by force or fear law, if:

  1. You engage in oral sex with someone who is unconscious of the nature of the act, and
  2. You know that s/he is unable to resist for this reason.19

Note that the person does not need to be actually unconscious for the law to apply. Being “unconscious of the nature of the act” can mean that:

  • S/he is unconscious or asleep,
  • S/he is unaware that the act is occurring, or
  • S/he is not aware of the essential characteristics of the act because the perpetrator tricked, lied to, or concealed information from him/her.20

Example: Jim is a New Age healer who claims to use therapeutic massage to cure various ailments. Sometimes he performs oral sex on his female patients as part of this “massage.”

Jim may be guilty of oral copulation of an unconscious person—because he is tricking his patients so that they are unaware of the essential nature of what he is doing.

1.4. Oral copulation of a disabled person
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Oral copulation of a disabled or mentally disordered person is a form of oral copulation by force or fear.

Finally, a defendant may be guilty of oral copulation by force or fear if s/he:

  1. Commits oral copulation with someone who has a mental disorder or developmental or physical disability that prevents him/her from understanding the nature and possible consequences of the act, and
  2. Knows or reasonably should have known that the other person's disorder or disability would prevent him/her from legally consenting.21

2. Penalties for Penal Code 288a Oral Copulation by Force or Fear

Penal Code 288a PC oral copulation by force or fear is a felony in California law.22

The potential penalties include:

  • Felony (formal) probation (as of January 1, 2017, this is only available in cases of oral copulation of a disabled person--not in cases of oral copulation by force or fear or of an intoxicated or unconscious person);
  • Three (3), six (6) or eight (8) years in California state prison; and/or
  • A fine of up to ten thousand dollars ($10,000).23

But if the alleged victim is a minor (that is, under 18 when the offense occurs), the potential prison sentence increases. In that case, you may face:

  • Six (6), eight (8) or ten (10) years in prison if s/he is 14 years of age or older; or
  • Eight (8), ten (10) or twelve (12) years in prison if s/he is under 14.24
2.1. Oral copulation by force or fear in concert

The penalties for California Penal Code 288a increase if you are alleged to have committed oral copulation by force or fear “in concert”—that is, together with at least one another person.25

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You face a longer prison sentence if you are alleged to have committed "oral copulation by force or fear in concert."

And these enhanced penalties will apply both:

  1. If you personally participated in the act of oral copulation; AND
  2. If you merely aided and abetted another person in committing oral copulation by force or fear.26

The potential state prison sentences for oral copulation by force or fear in concert are:

  • Five (5), seven (7) or nine (9) years if the victim is not a minor;
  • Eight (8), ten (10) or twelve (12) years if the victim is a minor who is 14 or older; and
  • Ten (10), twelve (12) or fourteen (14) years if the victim is a minor under 14.27

Example: Ken and Dave meet a woman at a bar and convince her to go to a hotel room with them. Then Ken helps hold the woman down while Dave performs oral sex on her against her will.

Ken did not actually engage in oral sex with the woman. But he aided and abetted Dave while he did so. Thus, he can be convicted of—and sentenced for—oral copulation by force or fear in concert.

2.2. Sex offender registration requirement

A conviction for oral copulation by force or fear will subject you to California's sex offender registration requirement.28

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.29
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A conviction for oral copulation by force or fear subjects you to a lifelong sex offender registration requirement.

This lifelong requirement can be as terrible a punishment as any jail sentence.

3. Legal Defenses to Oral Copulation by Force or Fear Charges

An experienced criminal defense attorney can help you avoid the harsh penalties and social stigma associated with an oral copulation by fear or force conviction.

S/he may be able to get your charges reduced or dismissed by deploying one of the following legal defenses:

You were falsely accused

According to Riverside criminal defense lawyer Michael Scafiddi:30

“As with other sex crimes, people are falsely accused of oral copulation by force or fear all the time. The accuser may be a former or current sexual partner—and she or he may be making false accusations because of jealousy, revenge, anger, or another emotionally-driven motivation.”

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.31 And certain more specific studies suggest that the number could be closer to half!32

There was actually consent

As we discussed above, lack of consent is a key element of the crime of oral copulation by force or fear under Penal Code 288a.33

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A conviction for Penal Code 288a carries a serious social stigma.

But in many cases there is a lot of ambiguity about whether the alleged “victim” actually consented. And if you reasonably believed that s/he had consented—then you are not guilty.34

Plus, lack of consent can be very hard to prove beyond a reasonable doubt. In many cases, the case comes down to competing “he said/she said” allegations.

Insufficient evidence

Unlike with Penal Code 261 rape, oral copulation by force or fear does not always produce physical evidence (such as injury to the alleged victim).

For this reason, the prosecutor might not have hard evidence that the act occurred at all—other than the statements of the accuser.

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 the case against you is too flimsy to pursue.

4. Penal Code 288a and Related Offenses

There are several related California crimes that may be charged along with or instead of Penal Code 288a oral copulation by fear or force.

These include:

4.1. Penal Code 288a oral copulation on a minor

Penal Code 288a PC also describes the closely-related offense of “ oral copulation on a minor.”

“Oral copulation on a minor” consists of oral copulation with any person under the age of eighteen (18)—regardless of whether the oral sex is consensual.35 (In this way, it is similar to California's “statutory rape” law.)

Oral copulation on a minor is a wobbler in California law—which means it may be charged as either a felony or a misdemeanor, depending on the circumstances of the crime and the defendant's criminal history.36

However, this offense becomes an automatic felony—with prison sentences ranging from sixteen (16) months to eight (8) years, depending on the parties' ages—if the defendant is over 21 and the “victim” is under 16.37

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Oral copulation with a minor is a less serious offense than oral copulation by force or fear.

If you are accused of oral copulation by force or fear by a minor—AND the prosecutor does not have solid evidence that the sex was not consensual—then your criminal defense attorney may be able to get the prosecutor to reduce your charges to oral copulation with a minor.

This crime carries lighter penalties and less of a social stigma.

4.2. Penal Code 261 rape

Penal Code 261 rape is defined as nonconsensual sexual intercourse accomplished by means of threats, force, or fraud.38

The legal definition of rape is virtually identical to that of oral copulation by force or fear—except that with rape the key sexual act is intercourse, not oral sex.39

In many cases involving allegations of nonconsensual sex, the defendant is accused of both PC 261 rape and PC 288a oral copulation by force or fear.

In most cases, rape is a felony carrying a potential state prison sentence of three (3), six (6) or eight (8) years.40

4.3. Penal Code 243.4 sexual battery

Penal Code 243.4 sexual battery/sexual assault is the touching of another person's intimate parts without their consent, for purposes of sexual gratification, arousal or abuse.41

Sexual battery is a wobbler. In most cases, the maximum felony prison sentence is four (4) years.42

Depending on the circumstances of your case, you may be charged with both oral copulation by force or fear and sexual battery—or, alternatively, you may be able to get your oral copulation by force or fear charges reduced to sexual battery charges.

Call us for help…

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For questions about the crime of oral copulation by force or fear 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 laws for oral copulation with a minor, please see our page on Nevada laws for oral copulation with a minor

Additional Resources:

Sexual Recovery Institute – Provides assessment and treatment for sexual addiction

Legal References:


1 Penal Code 288a PC – Oral copulation by force or fear. (“ . . . (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.”)

2 Judicial Council of California Criminal Jury Instructions (“CALCRIM”) 1015 – Oral Copulation by Force, Fear, or Threats (Pen. Code, § 288a(c)(2) & (3), (k)). (“The defendant is charged [in Count ] with oral copulation by force [in violation of Penal Code section 288a]. 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.”)

3 Penal Code 288a PC – Oral copulation by force or fear. (“(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 by force or fear, endnotes 1 and 3, above.

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.”)

5 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 by force or fear] . . . .”)

6 California Penal Code 290.018 PC – Penalties for [failure to register as a sex offender]. (“(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 by fear or force] 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.”)

7 CALCRIM 1015 – Oral Copulation by Force, Fear, or Threats (Pen. Code, § 288a(c)(2) & (3), (k)), endnote 2, above.

8 CALCRIM 1015 – Oral Copulation by Force, Fear, or Threats (Pen. Code, § 288a(c)(2) & (3), (k). (“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.”)

9 CALCRIM 1015 – Oral Copulation by Force, Fear, or Threats (Pen. Code, § 288a(c)(2) & (3), (k)), Related Issues. (“Sexual Organ A man's “sexual organ” for purposes of Penal Code section 288a includes the penis and the scrotum.”)

10 Based on People v. Catelli (1991) 227 Cal.App.3d 1434.

11 CALCRIM 1015 – Oral Copulation by Force, Fear, or Threats (Pen. Code, § 288a(c)(2) & (3), (k)), endnote 2, above.

12 CALCRIM 1015 – Oral Copulation by Force, Fear, or Threats (Pen. Code, § 288a(c)(2) & (3), (k)). (“[In order to consent, a person must act freely and voluntarily and know the nature of the act.]”)

13 CALCRIM 1015 – Oral Copulation by Force, Fear, or Threats (Pen. Code, § 288a(c)(2) & (3), (k)), Related Issues. (“Consent Withdrawn A forcible rape occurs when, during apparently consensual intercourse, the victim expresses an objection and attempts to stop the act and the defendant forcibly continues despite the objection.”)

14 CALCRIM 1015 – Oral Copulation by Force, Fear, or Threats (Pen. Code, § 288a(c)(2) & (3), (k)). (“[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.]”)

15 CALCRIM 1015 – Oral Copulation by Force, Fear, or Threats (Pen. Code, § 288a(c)(2) & (3), (k)). (“[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.]”)

16 CALCRIM 1015 – Oral Copulation by Force, Fear, or Threats (Pen. Code, § 288a(c)(2) & (3), (k)), endnote 2, above.

See also CALCRIM 1015 – Oral Copulation by Force, Fear, or Threats (Pen. Code, § 288a(c)(2) & (3), (k)). (“[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].]”)

17 CALCRIM 1017 – Oral Copulation of an Intoxicated Person (Pen. Code, § 288a(a), (i)). (“The defendant is charged [in Count ] with oral copulation of a person while that person was intoxicated [in violation of Penal Code section 288a(i)]. 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 another person; 2. An (intoxicating/anesthetic/controlled) substance prevented the other person from resisting; AND 3. The defendant knew or reasonably should have known that the effect of an (intoxicating/anesthetic/controlled) substance prevented the other person from resisting.”)

18 CALCRIM 1017 – Oral Copulation of an Intoxicated Person (Pen. Code, § 288a(a), (i)).(“ A person is prevented from resisting if he or she is so intoxicated that he or she cannot give legal consent. In order to give legal consent, a person must be able to exercise reasonable judgment. In other words, the person must be able to understand and weigh the physical nature of the act, its moral character, and probable consequences. Legal consent is consent given freely and voluntarily by someone who knows the nature of the act involved.”)

19 CALCRIM 1018 – Oral Copulation of an Unconscious Person (Pen. Code, § 288a(a), (f)). (“The defendant is charged [in Count ] with oral copulation of a person who was unconscious of the nature of the act [in violation of Penal Code section 288a(f)]. 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 another person; 2. The other person was unable to resist because (he/she) was unconscious of the nature of the act; AND 3. The defendant knew that the other person was unable to resist because (he/she) was unconscious of the nature of the act.”)

20 CALCRIM 1018 – Oral Copulation of an Unconscious Person (Pen. Code, § 288a(a), (f)). (“A person is unconscious of the nature of the act if he or she is (unconscious or asleep/ [or] not aware that the act is occurring/ [or] not aware of the essential characteristics of the act because the perpetrator tricked, lied to, or concealed information from the person/ [or] not aware of the essential characteristics of the act because the perpetrator fraudulently represented that the oral copulation served a professional purpose when it served no professional purpose).”)

21 CALCRIM 1019 – Oral Copulation of a Disabled Person (Pen. Code, § 288a(a), (g)). (“The defendant is charged [in Count ] with oral copulation of a mentally or physically disabled person [in violation of Penal Code section 288a(g)]. 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 had a (mental disorder/developmental or physical disability) that prevented (him/her) from legally consenting; AND 3. The defendant knew or reasonably should have known that the other person had a (mental disorder/developmental or physical disability) that prevented (him/her) from legally consenting. 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. A person is prevented from legally consenting if he or she is unable to understand the act, its nature, and possible consequences.”)

22 Penal Code 288a PC – Oral copulation by force or fear, endnotes 1 and 3, above.

23 Same.

See also Penal Code 672 PC, endnote 4, above.

See also Penal Code 1203.065 PC -- Probation in sexual assault cases.

24 Penal Code 288a PC – Oral copulation by force or fear, endnote 1, above.

25 Penal Code 288a PC – Oral copulation by force or fear. (“(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.”)

26 Same.

27 Same.

28 Penal Code 290 PC – Sex Offender Registration Act [applies to convictions for oral copulation by force or fear], endnote 5, above.

29 See same.

30 Riverside criminal defense lawyer Michael Scafiddi was a police officer for over a decade before he made the switch to a career seeking justice for criminal defendants. Scafiddi practices sex crime defense law, including defense of people accused of oral copulation by force or fear, throughout the Inland Empire and represents clients at the Riverside Hall of Justice, the Palm Springs Courthouse, the San Bernardino Courthouse, and the Victorville Courthouse, among others.

31 Emily Bazelon and Rachael Larimore, How Often Do Women Falsely Cry Rape?, Slate, Oct. 1, 2009.

32 Bruce Gross, False Rape Allegations: An Assault On Justice, The Forensic Examiner, Sept. 15, 2012.

33 CALCRIM 1015 – Oral Copulation by Force, Fear, or Threats (Pen. Code, § 288a(c)(2) & (3), (k)), endnote 2, above.

34 CALCRIM 1015 – Oral Copulation by Force, Fear, or Threats (Pen. Code, § 288a(c)(2) & (3), (k)), endnote 15, above.

35 Penal Code 288a PC – Oral Copulation on a Minor [related to oral copulation by force or fear]. (“(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.”)

36 Same.

37 Same.

38 Penal Code 261 PC – Rape defined [compare to definition of oral copulation by force or fear]. (“(a) Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances: (1) Where a person is 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. . . . (2) Where it is accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another. (3) Where a person 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. (4) Where a person is at the time unconscious of the nature of the act, and this is known to the accused. As used in this paragraph, “unconscious of the nature of the act” means incapable of resisting because the victim meets one of the following conditions: (A) Was unconscious or asleep. (B) Was not aware, knowing, perceiving, or cognizant that the act occurred. (C) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraud in fact. (D) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose. (5) Where a person submits under the belief that the person committing the act is the victim's spouse, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief. (6) 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. As used in this paragraph, “threatening to retaliate” means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death. (7) 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. As used in this paragraph, “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.”)

39 Same.

40 Penal Code 264 PC—Rape; punishment [compare to punishment for Penal Code 288a PC oral copulation by force or fear]. (“(a) Except as provided in subdivision (c), rape, as defined in Section 261 or 262, is punishable by imprisonment in the state prison for three, six, or eight years.”)

41 Penal Code 243.4 PC – Sexual battery [compare to oral copulation by fear or force law]. ("(a) Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).”)

42 Same.

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