Penal Code 288a—Oral Copulation with a Minor Laws in California
Oral sex with a minor is a crime in California. Under California Penal Code section 288a (PC 288a), it is illegal for anyone to engage in oral copulation with anyone who is under 18 years old regardless of whether it was “consensual.”
This is based on the notion that a minor cannot consent to sexual conduct because he or she lacks the judgment to do so. In a case where a person is found to have had oral sex with someone a person under 18 years old, they can be accused of violating this section of the Penal Code, “Oral Copulation with a Minor”. In this way it is similar to California’s PC 261.5 “Statutory Rape laws”.
How can I be convicted of violating California’s Statutory Rape Laws?
Similar to “Statutory Rape” a minor’s “consent” is irrelevant and the defendant’s “good intentions” are also irrelevant. So even when said sexual intercourse appears “consensual”, the act of having oral sex with an underage person is a crime, simply because of the person’s age. You will be accused of violating Penal Code 288a if:
- You participated in oral copulation with another person
- The other person was under the age of 18 at the time of the act.
It is important to note that, under the law, a person becomes one year older when the first minute of his or her birthday begins. This matters not just on the issue of when the victim turns 18, but it matters greatly on issues of punishments, as we will explain below.
Consider the following examples:
- Jordy, 19, meets Juan, 16, at a party. They sneak off into the bathroom where she performs oral sex on him. This would be considered oral copulation with a minor.
- Martin, 19, is dating Karissa, 17. For Karissa’s 18th birthday he wants to have oral sex with her. They stay up together, and it happens at 12:03 AM. This is not oral copulation with a minor because it took place 3 minutes after she turned 18 years old.
It is worth noting that even minors can be prosecuted for oral copulation with a minor under Penal Code 288a. Consider the following:
Lucas and Celeste are both 15 years old. Celeste gives Lucas a “blow job”. Because each of them had sexual intercourse with someone under 18 (each other), each of them technically violated PC 261.5 when they had sex.
However, many prosecutors might be reluctant to bring oral copulation charges in cases where minors merely had oral sex with each other and there are no other aggravating factors. Such cases are most likely to be be prosecuted when related charges are contemplated, such as oral copulation by force.
Penalties for Violating California’s Oral Copulation with a minor Laws
Is oral copulation a misdemeanor or felony?
Oral Copulation with a minor is a “wobbler” offense in California. Which means that depending on the ages of the parties involved, it may be charged as a misdemeanor or felony. Generally, if the minor is very young or there is a significant age difference between both persons, it will be charged as a felony.
If the victim is 16 or older and the defendant is 21 years old or younger, this can be tried as either a misdemeanor or felony. The maximum misdemeanor sentence is one (1) year of incarceration, while the maximum felony sentence is three (3) years in state prison.
If the victim is under 16 years old and the defendant is over 21 years old, this will be tried as a felony. The maximum sentence is three (3) years in state prison.
If the victim is under 14 years old and more than 10 years younger, this will be tried as a felony. The sentence for this offense is three (3), six (6), or eight (8) years of incarceration.
Do I have to register as a sex offender for oral copulation with a minor?
A conviction for oral copulation with a minor may requires you to register as a sex offender in California. California’s sex offender registry has three tiers, which require different lengths of registration. Learn more about California’s sex offender registry here.
Tier 1: Low-level offenders—This encompasses misdemeanor and some felony cases of oral copulation with a minor where there is no force or violence.
Tier 2: Mid-Level offender—This encompasses felony convictions when there is no force AND the minor is under 14 years old and more than 10 years younger than the defendant
Tier 3: High-level offenders—Life registration. This encompasses a felony conviction where the oral copulation was done by force. This also applies to cases where the victim could not consent due to intoxication or unconsciousness.
Defenses to an Oral Copulation with a minor Charge
There are some defenses available to a statutory rape charge in California.
Mistake of age
Although PC 288a very clearly prohibits any oral sex with a minor. It is a defenses that you honestly and reasonably believed that the victim was 18 or older at the time of the oral sex. It is a common misconception that you cannot claim that you “did not know” when facing oral copulation charges. However, in California you are “not guilty” of oral copulation with a minor if you can show that you, honestly and reasonably, believed that the victim was a consenting adult (over 18).
Amber, 21, is at a bar where a bouncer is routinely checking the ID of all patrons at the entrance. The bar’s signage clearly states “under 21 not allowed.” Pete, is 17 years old and he enters the bar with a fake ID some time after Amber did. Amber meets Pete, and dances with him. Amber is convinced that Pete must be at least 21 because he was able to enter the bar. They engage in oral sex that night. Amber is later charged with oral copulation with a minor under PC 288a, but if the evidence shows the above, then it should prove that Amber was “honestly and reasonably” mistaken about Pete’s age. As a result, Pete would be found “not guilty” of oral copulation with a minor under PC 288a.
As with all criminal cases, an oral copulation charge is often based on the statements of the witnesses. It is always a possibility that the witnesses could be exaggerating or even lying for a self-serving purpose. A successful defense attorney should always explore the possibility that you have been falsely accused.
An oral copulation charge, like any criminal case, can only be proven when the relevant witnesses are found to be credible. If a witness has a certain bias against you, or a motive to falsely incriminate you, then this should be explored thoroughly during cross-examination to support a defense that you have been falsely accused. Similarly, if a witness’ account lacks any physical evidence that, or if the physical evidence contradicts them entirely, then this can also support a defense that you have been falsely accused. Inconsistent statements, or demonstrated problems in a witness’ memory, can also support a “false accusations” defense in an oral copulation case. All of these areas should be investigated thoroughly during the defense of an oral copulation charge.
What are related offenses to oral copulation with a minor?
- Penal Code 288a—Oral copulation by force or fear
- Penal Code 261.5—Statutory Rape
- Penal Code 261—Rape
- Penal Code 288—Lewd or lascivious acts with a child
- Penal Code 243.4—Sexual Battery
- California’s Sex Offender Registry
Hiring a Criminal Defense Attorney
Our Bay Area sex crime lawyers are experienced in getting cases dismissed or earning you the best possible outcome, but it does take work. Being arrested for a sex crime is devastating. It can affect your job, professional licenses, immigration status, and can cause embarrassment and stress. Our job is to reduce that stress and handle all of the steps of fighting your case. Whether that means going to trial or securing you the best possible plea deal, we do it all.
If you are ready to discuss your cases with a VIRTUOSO CRIMINAL & DUI LAWYERS attorney, please contact us at (510) 988-5566 for a free and confidential consultation.