What is “Oral Copulation” and when is it illegal?

Oral copulation is the act more commonly referred to as oral sex. For legal purposes, it is defined as any sexual contact between one person’s mouth and another person’s genitals or anus.

Oral copulation is perfectly legal when done in private among consenting adults.

However, it can be a criminal offense when done

1. without the consent or against the will of the other party,
2. with a minor below the state’s age of consent, or
3. in public or in public view.

What is oral copulation?

In general, “copulation” is a word for “sexual intercourse.” “Oral copulation,” then, is defined as

• sexual intercourse involving the mouth, or
• oral sex.

The criminal laws of each state may define the act in slightly different ways. However, the only differences are going to be in the details of the act.

Most states cover oral copulation in other sex offense crimes, such as:

• statutory rape,
• public indecency,
• sexual abuse,
• sexual battery, or
• rape.

California is one of the only states that has a specific penal code section for the act of oral copulation.¹

Is it a sex crime?

The sexual activity of oral copulation is generally only a crime if it is done in 3 circumstances:

1. the act was done through the use of force, threats, or fear,
2. the act involved a minor, or
3. it was done in public.

A criminal defense lawyer can help defendants combat any of these criminal allegations.

Oral copulation by force or fear

Obtaining an act of oral copulation by using force or fear is illegal. It undermines any consent that may have been given. This makes it an act of non-consensual sex.

Oral copulation can also be illegal if it was obtained through the use of:

• violence,
• threats,
• duress, or
• menace.

Many states also prohibit oral copulation on someone who is unable to consent, often because they are:

• intoxicated,
• unconscious,
• afflicted with a mental disorder,
• impaired by a physical disability, or
• otherwise unaware of the nature of the act.

Oral copulation with a minor

It is also a crime to engage in oral copulation with a minor.

A minor is someone who is under the age of consent. The age of consent depends on the state. For example, the age of consent is 16 in the following states:

• Nevada,²
• New Mexico,³ and
• Washington.⁴

It is 17 in these states:

• Colorado,⁵
• New York,⁶ and
• Texas.⁷

And it is 18 in these states:

• Arizona,⁸
• California,⁹ and
• Oregon.¹⁰

Anyone below the legal age of consent is legally incapable of consenting to a sexual act, including oral copulation. In many states, this can amount to statutory rape.

Oral copulation in public

It is also illegal to perform oral copulation in public. So long as it involves 2 consenting adults, this is the least severe type of crime that oral copulation can lead to. Some states may call the offense:

• indecent exposure,
• public indecency, or
• sex in public.

It is often a misdemeanor offense.

What are the penalties of a conviction?

The penalties of a conviction for illegal oral copulation will depend on the specific offense and the state in which it was committed. Oral copulation of a minor or through the use of force or fear is generally a felony offense. Oral copulation in public is often a misdemeanor.

For example, in California, a conviction for oral copulation through force or fear carries:

• 3, 6, or 8 years in California state prison, and/or
• up to $10,000 in fines.¹¹

The sentence will be longer if force or fear was used in concert with at least one other person:

• 5, 7, or 9 years if the victim was an adult,
• 8, 10, or 12 years if the victim was a minor over than 14, or
• 10, 12, or 14 years if the victim was under 14.¹²

Defendants act in concert with one another if they:

• personally participate in the act of oral copulation, or
• aid and abet someone else in committing oral copulation by force or fear.¹³

If the act of oral copulation involved a minor, the prison sentence for a conviction in California will depend on the ages of those involved:

• if the victim was under 14 AND the defendant was at least 10 years older than the victim, a conviction carries a sentencing range of 3, 6, or 8 years,
• if the victim was under 16 AND the defendant was over 21, a conviction carries 16 months, 2 years, or 3 years in state prison, and
• if the victim was 16 or older OR the defendant was 21 or younger, the offense is a wobbler and can be charged as a:
  • misdemeanor that carries up to 1 year in county jail, or
  • felony that carries 16 months, 2 years, or 3 years in state prison.¹⁴

Effect of Romeo and Juliet Laws

A state’s Romeo and Juliet law may make it legal for people to engage in oral copulation when they are close in age to one another.

If the conviction involved both force or fear AND a minor, it carries longer prison sentences:

• 6, 8, or 10 years, if the minor was 14 or older, or
• 8, 10, or 12 years, if the minor was under 14 years of age.¹⁵

In most cases, defendants convicted of these forms of sexual assault are also subjected to sex offender registration requirements.

If the oral copulation was between consenting adults, but was done in public, it can be charged as:

• lewd conduct in public (California Penal Code 647(a)), which carries up to 6 months in jail, or
• indecent exposure (California Penal Code 314), which carries up to 1 year in jail.

What are some legal defenses?

Two of the most common legal defenses to a charge of illegal oral copulation are:

• the alleged victim is making false accusations, and
• there was consent.

In some cases, oral copulation charges are based solely on the alleged victim’s report of the crime. However, many of these reports are known to be false to the person making them. The victim is often only making the allegations to get back at the defendant for something else. Showing that they are false accusations can be an effective legal defense.

Consent can also be an effective defense to a charge of oral copulation. However, it is not a defense when the accusation is for a sex act that:

• was done in public, or
• involved a minor.

What is the law in California?

In California, oral copulation by force or fear and oral copulation with a minor are prohibited by California Penal Code 287 PC. Sex acts in public, including oral copulation, fall under either Penal Code 314, which prohibits indecent exposure, or Penal Code 647(a), which covers lewd conduct in public.

Oral copulation is defined as contact, no matter how slight, between

• the mouth of one person and
• the sexual organ or anus of another person.¹⁶

To prove a case of oral copulation by force or fear, California law enforcement has to show the following elements of the crime beyond a reasonable doubt:

• the defendant committed an act of oral copulation with someone else,
• the other person did not consent to the act, and
• the defendant accomplished the act using any of the following methods:
  • force sufficient enough to overcome the other person’s will,
  • violence,
  • duress,
  • menace,
  • fear of immediate and unlawful bodily injury to someone,
  • threat of retaliation against someone, with a reasonable possibility that the threat would be carried out, or
  • threat of using the authority of a public officer to incarcerate, arrest, or deport someone.¹⁷

A threat to retaliate includes a threat to:

• kidnap,
• unlawfully restrain or confine, or
• inflict extreme pain, serious bodily injury, or death.¹⁸

It is a defense to an oral copulation offense if the defendant reasonably believed that the alleged victim consented to the act.¹⁹

A criminal defense attorney from a reputable law firm can provide effective sex crimes defense to people charged under California’s oral copulation laws.

What happened to California Penal Code 288a?

In California, the crime of oral copulation used to be prohibited by Penal Code 288a, rather than Penal Code 287. This changed on January 1, 2019. The state legislature renumbered PC 288a to PC 287. The text of the law and its penalties remained the same.

The change was likely made to avoid confusion with the crime of lewd acts with a child under 14 (Penal Code 288(a)).

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