Oral copulation with a minor is covered under California Penal Code Section 288a. The criminal offense of oral copulation with a minor has several different statutes based on the status of the victim.
For example, there are different types of specific oral copulation charges in cases where the victim is under a specific age and when the victim is intoxicated, unconscious, or if the unlawful acted occurred using force.
Under PC 288a, the Los Angeles County prosecutor could charge you with:
- A misdemeanor or felony crime for having oral copulation with a minor under 18 years old
- The legal penalties for PC 288 conviction will vary depending on your age and the victim's age at the time the crime occurred
One of the most common questions our Los Angeles criminal defense lawyers are asked deal the issue of consent.
Many falsely believe they can't be charged with oral copulation with a minor when they gave consent to the act. In California, the age of consent is 18 years old.
This means minors can't legally give consent to any type of sexual activity and it simply doesn't matter if they were a willing participant, even in cases where both were minors.
In other words, consent is not a valid legal defense when you are charged with Penal Code Section 288a.
Oral copulation with a minor is considered a serious sexual related crime and all sex crime allegations with minors are aggressively prosecuted by the Los Angeles County District Attorneys Office – Sex Crimes Division.
If you are convicted, the legal consequences can be severe and you will be required to register as a sex offender for life under California Penal Code Section 290.
If you are under investigation or already charged with oral copulation with a minor, you need to consult with an experienced Los Angeles criminal defense attorney at Eisner Gorin LLP immediately.
Don't make any statements to police as you might incriminate yourself. Now that we have covered a general overview of oral copulation with a minor offense, let's take a closer look at the legal definition, penalties, and potential legal defenses below.
Legal Definition of Oral Copulation with a Minor
California Penal Code Section 288a describes the crime of oral copulation with a minor as follows:
- (a) Oral copulation is an act of copulating the mouth of one individual with the sexual organ or anus of another person. (b) Anyone who engages in oral copulation with someone less than 18 years old will be punished by incarceration in county jail or California state prison for up to one year. (2) Anyone who 21 years old and engages in oral copulation with someone under 16 years old is guilty of a felony offense.
As stated above, there are various other statutes under PC 288a that deal with situations where the victim is less than 14 years old:
- when an act of oral copulation was accomplished against the minor's will by means of force, violence, duress, or fear of unlawful bodily injury;
- when oral copulation occurred by threats of retaliation against the victim when there is a reasonable possibility the accused could carry out the threat;
- when oral copulation occurred in concert with another person by aiding and abetting the act; and
- situations where the act of oral copulation occurred on and unconscious victim
Finally, it's important to note that under the legal definition of oral copulation, penetration, ejaculation, or an orgasm is not required.
Elements of the Crime
In order for the Los Angeles County prosecutor to secure a conviction for oral copulation with a minor, in violation California Penal Code Section 288a, they must be able to prove specific elements of the crime. These include:
- You engaged in the act of oral copulation with another person, and;
- The other person was less than 18 years old when the act occurred
As you can see above, the elements of the crime are straightforward. Oral copulation with someone under 18 years old is a crime under PC 288a.
Again, the person under 18 years old can't legally give consent to the act. In cases where both defendants accused or oral copulation are minors, the prosecutor can still charge them with a crime if they can prove they knew it was wrong.
Typically, oral copulation charges where both were minors will be dealt with in a Los Angeles County juvenile court. If you need additional information, call a Los Angeles criminal defense attorney at our office.
Related Content: Spousal Rape Law Repealed in California
As stated above, the legal penalties for an oral copulation with a minor conviction, under California Penal Code Section 288a, will depend on many different factors, including the age of the defendant and victim. PC 288a is a “wobbler,” meaning the Los Angeles County prosecutor can charge the case as either a misdemeanor of felony offense.
Their decision is normally based on the specific circumstances and your criminal history. Oral copulation is a wobbler when the victim as 16 years old or the defendant was 21 years old when the crime of oral copulation occurred.
If you are convicted of oral copulation with a minor as a misdemeanor crime, the legal penalties include:
- Up to one year in a Los Angeles County jail
- A fine up to $1,000
- Misdemeanor summary probation
If you are convicted of oral copulation with a minor as a felony crime, the legal penalties include:
- 16 months, 2 or 3 years in a California state prison
- A fine up to $10,000
- Formal felony probation
If the victim was under 14 years old and the defendant was more than 10 years older than the victim at the time of the oral copulation offense, the California state prison sentence will increase to 3, 6, or 8 years.
Oral copulation by force or fear will always carry a harsher sentence. It's always a felony crime and you could be sentenced to up to 12 years in state prison.
- Penal Code Section 288a(b)(1) - Oral Copulation with someone under 18
- Penal Code Section 288a(b)(2) - Oral Copulation with someone under 16
- Penal Code Section 288a(c)(1) - Oral Copulation with someone under 14
- Penal Code Section 288a(c)(2)(A) - Oral Copulation by force or fear
- Penal Code Section 288a(c)(2)(B) - Oral Copulation with child under 14 by force
- Penal Code Section 288a(c)(2)(C) - Oral Copulation by force 14-17
- Penal Code Section 288a(c)(3) - Oral Copulation with threat of retaliation
- Penal Code Section 288a(d)(1) - Oral Copulation in concert
- Penal Code Section 288a(d)(2) - Oral Copulation with child in concert
- Penal Code Section 288)a(d)(3) - Oral Copulation with child 14-17 in concert
- Penal Code Section 288a(f) - Oral Copulation of unconscious victim
- Penal Code Section 288a(i) - Oral Copulation of intoxicated victim
- Penal Code Section 288a(k) - Oral Copulation by threat of arrest or deportation
- Penal Code Section 261.5 - Statutory rape
- Penal Code Section 288 - Lewd acts with a minor
- Penal Code 667.71 - Habitual Sex Offender
There are a variety of legal defenses available to our Los Angels criminal defense lawyers. It's important to note that every case has unique facts and circumstances.
Therefore, our attorneys will need to thoroughly review the specific details on your case in order to develop an effective strategy to defend you. However, there are many common legal defenses for oral copulation with a minor. These include:
Lack of knowledge of victim's age – In some cases, our criminal attorneys might be able to argue you had a reasonable belief the minor was over 18 years old. In other words, you were simply unaware the victim was a minor based on their physical appearance or the victim told you they were an adult.
We may also be able to use witness statements where the victim told them as well they were over 18 years old.
You can't be guilty of oral copulation with a minor if we can prove you actually believed the minor was more than 18 years old, but we must be able to show it was a reasonable belief.
False allegation – In certain cases, our criminal lawyers may be able to present an argument you were falsely accused and wrongfully arrested. In fact, it's not an uncommon event for someone to be falsely accused of unlawful oral copulation.
We have seen cases where the alleged victim had a relationship with the defendant that ended in an ugly breakup. The victim is hurt and angry over the breakup and wants to get them in trouble.
Therefore, they make false allegations of forced oral copulation due to jealously or revenge.
Contact our Los Angeles Criminal Defense Law Firm
If you have been accused of oral copulation with a minor, in violation of California Penal Code Section 288a, you should call the Los Angeles criminal defense attorneys at Eisner Gorin LLP.
Your future is at stake. A conviction will have life-changing consequences. Our law firm has extensive experience defending clients against sex crimes cases.
You need to let us first review the specific details of your case in order to advise on your best legal options moving forward. Don't talk to any police detectives.
Contact us at 877-781-1570.