California laws are very stringent on sex-related offenses, especially those committed by the use of fear/force. An example of these offenses is oral copulation through fear/force. The offense is achieved when there is non-consensual contact between a person’s mouth, and another’s anus or genitals. Those convicted of this offense can be sentenced to up to twelve years in state prison and be required to register as sex offenders.
Oral copulation through fear/force is also an offense that will affect several aspects of your life, including damaging your reputation. Therefore, you need excellent legal representation to avoid a conviction if you face these charges. At Los Angeles Criminal Lawyer, we have a reliable team of well-trained and experienced attorneys that could help you understand your options, navigate the legal system, and protect your rights against violation. If you are charged in Los Angeles, CA, you can get in touch with us right away.
Oral Copulation by Fear/Force—Legal Definition
California law against oral copulation through fear/force is provided under Section 287 of the State Penal Code. The law makes it illegal for any person (the defendant) to forcefully or fearfully cause another person’s mouth (the victim) to come into contact with the defendant’s anus or genitals. The offense could also be committed if a defendant forcefully or fearfully causes contact between his/her mouth with another person’s anus or genitals. For the defendant to be found guilty under this law, the prosecutor must prove certain elements beyond a reasonable doubt. They are:
- That there was contact between a person’s mouth and a sexual organ of another person
- That the contact occurred without that person’s consent
- That the contact was accomplished through violence, force, duress, menace, or fear of unlawful and immediate physical injury or threat of retaliation against another person
A person might also face accusations Under California Penal Law Section 287 for doing the following:
- Engaging in oral copulation with an intoxicated person, hence unable to resist
- Engaging in oral copulation with an unconscious person. An unconscious person cannot understand what the act entails and so is incapable of giving consent.
- Engaging in oral copulation with an individual legally incapable of giving consent, for example, a physically, developmentally, or mentally disabled person.
Examples of incidents that might result in charges for California oral copulation through fear/force include:
- A woman who threatens to harm another woman unless she agrees to have oral sex
- A man who engages in oral sex with a woman who is mentally disabled
- An influential woman who threatens to bring harm to a young man’s family unless he engages in oral sex with her
These examples clearly show no limit to what can be considered oral copulation through fear/force in California. Therefore, a person is charged based on several other factors, not just because fear or pressure was applied. To understand the offense even better, let us look into these factors in detail.
The Underlying Offense, Oral Copulation
A person can only be charged with oral copulation by fear/force if there is evidence that they engaged in oral copulation. Oral copulation is the underlying offense in this case. Remember that the act will still count, however slight the underlying offense was. Again, no penetration is required, just contact between a person’s mouth with another’s sexual organs, including the anus or genitals. A man’s sexual organs will consist of both his penis and scrotum.
Example: On her way home from college, Sarah is lured by James to his home. While in his room, James forces Sarah to lick his genitals. James is older and stronger than Sarah. Therefore, Sarah is incapable of fighting back. However, she fights hard and only licks his scrotum before she frees herself and runs for the door. Sarah reports the incident to her parents, who later recorded a statement with the police. James is arrested and charged with oral copulation through force.
Note that James could still be convicted even though his penis did not penetrate Sarah’s mouth. The offense always counts. However, slight contact was between Sarah’s mouth and James’s genitals.
Oral copulation through fear/force only happens when the victim does not give consent. Most California sex crimes’ main element is lack of approval/consent, including rape and lewd acts with a minor. A person is said to have given consent to a sexual act if they:
- Acted voluntarily and freely during its commission
- Understood what the act to which they were consenting entailed
Consent can be given and withdrawn almost immediately. A person can freely agree to engage in oral sex and then change their mind before the deed begins. If the next person proceeds to have oral sex with them, it becomes unlawful and could amount to oral copulation through fear/force.
Example: Liz and Max agree to try oral sex one afternoon. It is their first time engaging in any kind of sexual activity, so Liz is very nervous. Just when they are about to start, Liz changes her mind and informs her partner. However, max would have none of that and proceeds to force Liz into the act. If reported, max could be convicted of oral copulation through fear/force.
Note that consent has to be given, even if the alleged victim and the defendant are or were in a relationship in the past. The fact that the two are married or were married before does not automatically mean that consent has been given. Again, just because the victim asked the defendant to use a condom does not mean that she had consented to the act.
However, there are instances when the defendant could have reasonably thought that the victim had consented to the sexual act. If the defendant can prove this in court, he/she may not be found guilty of California’s oral copulation through fear/force.
By Fear or Force
Fear or force, as used under this law, could mean that the offense was committed through any of these acts:
- Through force, which means that the offender used not more physical strength than was necessary to overpower the victim’s will
- Through violence
- Through duress, which means either implied or a direct force, danger, violence, retribution, or hardship that would make another person do something they wouldn’t otherwise do
- Through menace, which means that an act, threat, or statement was made showing the defendant’s intention to harm the victim
- Through threats of imminent and unlawful physical injury to the victim or someone else
- Through threats to get revenge if the supposed victim fails to submit. Revenge here may be in the form of kidnapping, unlawful restraining, confining, inflicting severe physical injury or extreme pain, the threat of death of the victim or another person.
Example: Tom and Jones abduct a 16-year old girl outside her home. They take the girl to an abandoned building near her home, intending to rape her. While there, the two force the girl to engage in oral sex with them. Tom threatens to harm her family if she doesn’t comply and even shows her a gun. If reported, Tom and Jones could be found guilty of oral copulation through fear/force.
Oral Copulation Involving a Highly Intoxicated Person
A person who performs oral copulation on a highly intoxicated person could also be charged with oral copulation through fear/force. The charges will apply if one or both the following statements are factual:
- That the alleged victim was too intoxicated and hence, incapable of giving consent or resisting the act. The person’s intoxication could have been caused by alcohol, drugs, or other alcoholic substances.
- That the defendant knew or should have reasonably known that the victim would not have consented to the act were he/she sober.
This will stir up the prosecutor’s issues, mainly because most sexual encounters happen when at least one of the participants is intoxicated. However, the law could still help clarify matters further. Section 287 of the California Penal Code considers a person highly intoxicated to consent if they are incapable of understanding the physical details of an act, its morality, and possible consequences.
The defendant could still present an adequate defense here by convincing the court that the alleged victim may not have been too intoxicated at the time. If he/she manages to persuade the court, then the court may drop his/her charges.
Oral Copulation Involving an Unconscious Person
Like a highly intoxicated person, an unconscious person may not be able to give consent to any form of a sexual act. Thus, performing oral copulation on a person like that could yield oral copulation charges through fear or force. To be found guilty of oral copulation of a highly intoxicated person, the prosecutor must prove the following:
- That the defendant engaged in oral sex with an unconscious person and so, he/she was unaware of the details of the deed
- That the defendant was aware or should have reasonably known that the person was incapable of resisting
Note: The victim doesn’t have to be medically unconscious for this law to be used. What is needed is proof that the person was unconscious/unaware of the details of that act, which could be proven by:
- The person was asleep or physically unconscious.
- The person was unaware that something was happening between him/her and the defendant.
- That the person was unaware of what the act entailed because the defendant had concealed information, lied to, or tricked him/her.
Oral Copulation on a Disabled Person
Lastly, a person can face oral copulation charges through fear/force if the victim is a disabled person. The following elements will be used to prove whether or not the defendant is guilty under this category:
- That the person performed oral copulation on a person who has a developmental, physical, or mental disability that makes him/her incapable of comprehending the nature and magnitude of the deed
- That the defendant was aware or should have reasonably known about the person’s disability and their inability to give consent
What are the Penalties for Oral Copulation Through Fear/Force?
In California, the crime of oral copulation through fear/force is convicted as a felony. The following are possible penalties a person could receive after conviction:
- Felony probation — From January 2017, felony probation for this offense is only given if the crime is committed against a disabled person. Anyone convicted of oral copulation through fear/force on an unconscious or intoxicated person cannot be placed on probation.
- Three, six, or eight years in state prison
- A maximum fine of $10,000
However, if the offense is committed against a minor below 18 years, the court increases the prison sentence. Therefore, the offender may receive:
- Six, eight, or ten years of imprisonment if the alleged victim was 14 or more years old at the time the offense was committed
- Eight, ten, or twelve years of imprisonment if the alleged victim was below 14 years of age
Oral Copulation in Concert
Again, the consequences for oral copulation through fear/force increase if the defendant committed the offense in concert. As used in this context, the defendant committed the crime together with one or more people. The enhanced consequences will apply if the defendant took part in the commission of the act, or he/she merely abetted or aided the commission of the offense. If any of those applies, then the court will issue penalties as:
- Five, seven, or nine years of imprisonment if the alleged victim was not a minor
- Eight, ten, or twelve years if the alleged victim was a minor but older than 14 years
- Ten, twelve, or fourteen years if the alleged victim was a minor below 14 years
Registering as a Sex Offender
Among the grave consequences of most sex crimes in California is the offender’s requirement to register as a sex offender for a given number of years. The consequences apply even for those convicted for oral copulation through force/fear. The court will order the offender to register as a three-tier sex offender for life. It means that the offender will have to register with law enforcement every year in the county or city of their residence. The registration must be renewed yearly, at least five days after their birthday. The offender will have to register every time they relocate to a new place.
Registering as a sex offender is a severe consequence, just like a jail sentence, because the state’s sex-offender registry is available for public view. The registry will even show the general public those registrants who have violated the registration.
Generally, California’s oral copulation through fear/force is a life-changing offense whose conviction can affect many aspects of a person’s life. Thus, an accused person may greatly benefit from engaging a competent criminal attorney’s services to handle their case.
Possible Legal Defenses Against Charges of California Oral Copulation Through Fear/Force
As mentioned above, fighting charges for oral copulation through fear/force is the only way to avoid the grave consequences of a conviction. Fortunately, California law allows an accused person to defend themselves against criminal charges. All you need is the help of a highly skilled and experienced attorney. Several defense strategies against this charge are available that your attorney can use in your favor. If successful, your attorney may compel the court to either drop or reduce your charges. The latter will see you facing fewer penalties than you could have if convicted of the underlying charge. These defense strategies include:
Anyone is subject to false accusations, and if you are not careful, you may pay heavily for an offense you did not commit. Thus, it is not unusual for a person to face false accusations for a severe crime like oral copulation through fear/force. Most sexual offenses do not happen in broad daylight, and so, there is usually no irrefutable evidence to convict an offender. Many people take advantage of this to falsely accuse others as a way to get revenge against them. It could be a current or former sexual partner. Others make false accusations out of jealousy or anger.
A competent criminal attorney can help you avoid a conviction and the negative consequences of this offense. He/she should gather enough evidence to prove that you are innocent of the charges you face. If successful, the court will drop or reduce your charges.
There Was Consent
If consent was given, then the defendant will not be found guilty of oral copulation through force/fear. However, the challenge is in proving that, indeed, consent was given. The prosecutor will be facing the same challenge of proving that the alleged victim did not give consent. An experienced attorney should come up with a stronger argument that you believed that consent was given. He/she could also try to weaken the prosecutor’s case, considering it is difficult to prove beyond reasonable doubts that there was no consent. If successful, you will not be found guilty of the offense.
There is not much evidence that can be used to prove oral copulation through force/fear. Thus, the defense side can always cite insufficient evidence to have the charges dropped or reduced. Again, the prosecutor will be tasked with proving all the offense elements beyond a reasonable doubt. If the evidence presented is insufficient or too weak to support the claims, the court could throw out the case.
Statute of Limitation for Oral Copulation
Victims of sex-related offenses do not get a strict deadline within which they must bring up a case against their offenders. The law understands that it is not easy to speak up after a terrifying ordeal. Again, sometimes the victims require a little more time to heal.
Thus, the law gives victims of oral copulation through fear/force that was 18 when the offense was committed until they turned 40 to file a case against their offenders. Alternatively, the prosecutor may file charges for the same violation a year after:
- The alleged victim, a minor, reports an incidence of oral copulation to the police.
- The passing of every other statute of limitations
- The allegation has been supported by irrefutable evidence, not just a health professionals’ opinion.
If, on the other hand, the victim was an adult (over 18) when the offense was committed, the law gives him/her up to ten years to file a case in court against their offender.
In any case, the prosecutor must charge the suspected offender within a year after their identity has been established through DNA testing.
Civil Lawsuits Against California Oral Copulation Through Force/Fear Offenders
Additionally, victims have a right to bring a lawsuit against their offenders in a civil court to recover compensation. Remember that the results of a criminal trial will not affect this right. A civil court will only require the victim to prove that the alleged defendant committed oral copulation through fear/force against them. If successful, the victim could recover all the damages incurred, including the pain and suffering they endured and punitive damages.
The law allows spouses of sexual assault victims to file a lawsuit against their spouses’ offenders for loss of consortium. A partner could argue that the alleged defendant’s actions injured his/her spouse to the point that they no longer enjoy their partner’s intimacy, moral support, or companionship.
Additionally, the court could award the victims punitive damages to punish the offender further. It is also a way to warn other would-be offenders against the same or similar behavior.
California’s sex-related charges, such as oral copulation through force/fear, can significantly affect your life. A conviction will cause you to spend years behind bars and affect your finances and reputation. Thus, you need the best legal representation you can get to fight those charges. At Los Angeles Criminal Lawyer, we believe that you are innocent until proven guilty. You may have been falsely accused or thought that consent was given. That is why we will help you through the legal process and fight with you for a favorable outcome. Therefore, if you are in Los Angeles, CA, call us at 310-502-1314 and let us determine the right course of action to take.
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