Penal Code § 287 PC – Oral Copulation with a Minor

Penal Code § 287 PC makes it a crime to engage in oral copulation with a minor (a person under the age of 18). Oral copulation is defined as any contact between the mouth of one person with the penis, vagina, or anus of another person.

Section 287 also applies to oral copulation with any person when it is accomplished by means of 

• force,
• violence,
• duress,
• menace, or
• fear.

The offense is a felony and can be punished by up to 8 years in state prison.

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. ^1 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 287 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

Perhaps worst of all, a conviction for oral copulation with a minor in California subjects you to California’s sex offender registration requirement in some cases. The judge has discretion not to require sex offender registration if the defendant is convicted under PC 287(b) and if the child is at least 14 years old and within ten years of age of the defendant.⁸

If you are required to register under Penal Code 287, you must register with the state at least every year for as long as you are required to register—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 287 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 crime of oral copulation with a minor, our California criminal defense attorneys will address the following:

• 1. What does it mean to engage in oral copulation with a minor?
  • 1.1. Juvenile defendants accused of oral copulation with a minor
• 2. What is the potential sentencing for 287 pc?
  • 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 287 conviction
• 3. What are the best legal defense strategies?
• 4. What is the statute of limitations for oral copulation with a minor?
• 5. Are there related crimes the prosecutor can charge?
  • 5.1. Penal Code 287 oral copulation by force or fear
  • 5.2. Penal Code 261.5 statutory rape
  • 5.3. Penal Code 288 lewd acts with a minor
• 6. When and why did PC 288a change to PC 287?

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

1. What does it mean to engage in 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

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 18^th 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

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. What is the potential sentencing for 287 pc?

The penalties for Penal Code 287 PC “oral copulation with a minor” vary depending 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 287 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

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:

• Misdemeanor (summary) probation;
• Up to one (1) year in county jail; and/or
• A fine of up to one thousand dollars ($1,000).¹⁸

If Penal Code 287 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 always 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 287 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 may subject you to California’s sex offender registration requirement. The judge is not required to impose sex offender registration requirements in PC 287(b) cases if the child was at least 14 and within ten years of the defendant’s age.²³

How long a person has to register depends on which tier the defendant is assigned to. California’s sex registration system has three tiers.

• Tier one is for the lowest level offenders, and there is a minimum sex registration requirement of ten (10) years. This encompasses misdemeanor convictions of oral copulation with a minor and some felony cases where there is no force.
• Tier two is for the mid-level offenders, and there is a minimum sex registration requirement of twenty (20) years. This encompasses felony convictions when the minor is under 14 years of age and more than 10 years younger than the defendant (and there is no force).
• Tier three is for the high-level offenders, and registration is for life. This encompasses all felony convictions where the oral copulation was done by force or duress. This also comprises cases when the defendant is acting in concert with another or when the victim cannot consent because of intoxication or being unconscious; specifically, when the defendant violates subdivision (d), (f), or (i) of Penal Code Section 287.

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 287 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 expungement of your PC 287 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. What are the best legal defense strategies?

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.

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

1. actually believed that the minor was over 18, and
2. 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 287 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, or a
• romantic relationship gone sour.

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. What is the statute of limitations for oral copulation with a minor?

The California statute of limitations for oral copulation with a minor expires on the victim’s 40th birthday. However, the prosecutor can still bring charges within a year after:

• The victim files a police report alleging oral copulation against a minor;
• All other statutes of limitations have ended; and
• The allegation is backed up by independent information (not a mental health professional’s opinion)

The district attorney can also prosecute within one year after the suspect’s identity is determined by DNA testing.³¹

5. Are there related crimes the prosecutor can charge?

Some of the most common similar offenses to Penal Code 287 oral copulation on a minor are:

 5.1. Penal Code 287 oral copulation by force or fear

Penal Code 287 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.

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

 5.2. Penal Code 261.5 statutory rape

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 287 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)

 5.3. 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

6. When and why did PC 288a change to PC 287?

Penal Code 287 was originally Penal Code 288a. PC 288a was renumbered to PC 287 on January 1, 2019 pursuant to California Senate Bill 1494 (2018).

The bill did not change the text of the statute, just the PC number. Presumably, the purpose of the renumbering was to avoid confusing PC 288a (oral copulation) with PC 288(a) (lewd acts with a child under 14).

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, Rancho Cucamonga, the San Francisco Bay area, and several nearby cities. We create attorney-client relationships throughout the state.

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: