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What are the Oral Copulation with a Minor Laws?

Posted by Dmitry Gorin | Feb 17, 2022

According to Penal Code 287 PC, it is a crime in California to engage in oral copulation with anyone under 18—even if the engagement is consensual and even if both parties are underage. Penal Code 288a PC oral copulation with a minor was changed to Penal Code 287 PC on January 1, 2019, as part of California Senate Bill 1494.

PC 287 also applies if the oral copulation was completed by force, violence, or fear. This sexual-related crime is a “wobbler” that can be filed as a misdemeanor or felony depending on the parties' ages.

Oral Copulation with a Minor - Penal Code 287
Penal Code 287 makes it a crime to engage in oral copulation with a minor, even if consensual.

For instance, if the victim was under 14 years old while the defendant was more than ten years older, prosecutors will file the case as a felony and punishable by up to 8 years in state prison.

Oral copulation with a minor falls under the umbrella of lewd or lascivious acts on a child, and a defendant could be ordered to register as a California sex offender.

Penal Code 290 PC registration means a convicted defendant will be required to register at their local police station every year. If they fail to register, they could face separate criminal charges.  

Oral copulation with a minor is a sex crime that can have severe repercussions in your life if convicted, including fines, significant prison time, and severe collateral consequences on a defendant's daily life.  Our Los Angeles criminal defense lawyers are providing a closer review below.

Overview of Oral Copulation with a Minor

PC 287 defines “oral copulation” as any contact between one person's mouth and the sex organs or anus of another—regardless of whether penetration, ejaculation, or orgasm occur.

By California law, the determining factor in whether oral copulation is a crime is the victim's age and participants. The determination of the severity of the crime is the age difference between the two parties and whether the act was forcible. Similar to Penal Code 261.5 PC statutory rape, you could be charged with oral copulation with a minor:

  • even if the act was mutually consensual (minors can't give consent),
  • if the act is initiated by the minor, or
  • if you are a minor yourself.

Being a minor violating PC 287 does not guarantee leniency or case dismissal. However, this law is typically enforced when someone over age 18 engages in oral copulation with someone under age 18.

While it is rarely used to prosecute two teens engaging in consensual activity, it's important to note that it can and does happen—and if convicted of the crime, you could be required to register as a sex offender even if you considered the activity to be mutually consensual.

To be convicted of Penal Code 287, the prosecutor must prove all the elements of the crime beyond a reasonable doubt listed in California Criminal Jury Instructions 1082.

What are the Penalties for PC 287 If Convicted? 

As noted, oral copulation with a minor may be charged either as a misdemeanor or a felony, depending mainly on the age difference between the defendant and the victim at the time the act occurred—and the resulting penalties may vary widely.

The penalties for Penal Code 287 will depend on the age difference between defendant and victim.

If the defendant is under age 21 OR the victim was over age 16…the act is a “wobbler offense,” meaning it may be charged either as a misdemeanor or a felony. For the former, a conviction may result in up to one year in jail, although, in many cases, the sentence is reduced to probation. A conviction may result in up to 3 years in prison for the latter.

If the defendant is over age 21 AND the victim is younger than age 16, the offense must be charged as a felony with a maximum prison sentence of 3 years.

If the victim is under age 14 and the age difference is greater than ten years between victim and defendant, it's a felony offense with a maximum penalty of up to 8 years in prison.

If the act of oral copulation was against the victim's will, and if the defendant used force, violence, and fear to coerce the victim, they are facing up to twelve years of imprisonment. If the victim suffers a bodily injury or harm during the incident, a defendant will be facing 10 – 14 years in state prison.

Sex Offender Registration

In California, oral copulation with a minor is a sex crime, meaning those convicted may be required to register as sex offenders. There is a three-tier sex offender registration system in California. The exact rules for registration depend on the severity and circumstances of the crime, as follows:

  • If the victim was at least 14 years old and the age difference was less than ten years, the judge may impose registration requirements at their discretion. This is the only instance in which registration may not be required;
  • For other misdemeanor convictions and felonies involving no for, the defendant must remain on the registry for a minimum of 10 years (Tier 1 offense).
  • For felony convictions where the minor is younger than age 14, and the age difference is greater than ten years, the defendant must remain on the registry for a minimum of 20 years (Tier 2 offense).
  • For felony convictions where the oral copulation involved force or duress, or the victim was otherwise unable to consent, registration is for life (Tier 3 offense).

 What are the Related Sex Offenses That Can be Filed?

Sex crimes considered similar to oral copulation with a minor and often charged in tandem with this crime, including the following:

  • Oral copulation by force or fear: Also covered in PC 287, coercing anyone (adult or child) to engage in oral copulation is a felony offense, punishable by up to 8 years in prison (up to 12 years if the victim is under age 14).
  • Indecent exposure (Penal Code 314 PC): Public nakedness or exposure of one's genitals in the presence of those who would be offended. If your alleged act of oral copulation includes exposing yourself in public, for example, you could be charged with this crime in addition to oral copulation with a minor.
  • Lewd acts with a minor (Penal Code 288 PC): Touching any part of a child's body for sexual gratification purposes is a crime, so this crime is often charged alongside oral copulation.
  • Statutory rape (Penal Code 261.5 PC): Sexual intercourse with a minor. If the act of oral copulation preceded sexual intercourse, prosecutors might also charge you with this crime.
  • Gang rape in concert (Penal Code 264.1 PC): This crime occurs when two or more people work together to commit a rape crime.

What are the Best Defenses for Penal Code 287?

Defendants have legal options when accused of oral copulation with a minor charge. The most common defenses are discussed below.

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Perhaps there is a lack of evidence. Many cases are dismissed because there is insufficient evidence to prove the case. These cases often rely on verbal statements without any proof.

Perhaps a defendant was falsely accused and wrongfully arrested. There are cases where allegations of oral copulation with a minor are entirely untrue. Maybe the accuser has malicious intent. We may uncover crucial information and evidence during investigations to discredit these accusations.

Perhaps the defendant reasonably believed the person was over 18 years old at the time of the incident.  If we can prove there was a genuine belief the victim was over 18, there is a good chance of avoiding a conviction. Maybe the victim told the defendant they were over 18, or their physical appearance led them to believe they were an adult.

Eisner Gorin LLP is a top-rated Los Angeles criminal defense law firm serving people throughout Southern California. You can reach us for an initial consultation by calling (310) 328-3776 or filling out our contact form.

About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

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