Penal Code § 287 PC makes it a crime to engage in oral copulation with a minor under 18. Oral copulation is any contact between the mouth of one person with the penis, vagina, or anus of another person. Depending on the circumstances, this offense carries up to 14 years in state prison.1
Below, our California criminal defense attorneys discuss the legal issues related to the crime of oral copulation with a minor:
- 1. Elements of The Crime
- 2. Penalties
- 3. Defenses
- 4. Statute of Limitations
- 5. Related Crimes
- Additional Resources
1. Elements of The Crime
For you to be convicted of oral copulation with a minor in California, the prosecutor must prove the following two elements of the jury instructions:
- You [the defendant] participated in an act of “oral copulation” with another person, and
- The other person was under the age of 18 when this occurred.
Oral copulation is defined as any contact—no matter how slight—between the mouth of one person, and the sexual organ or anus of another. For males, the sexual organ includes both the penis and the scrotum. Neither penetration nor ejaculation/orgasm is required.
Under California law, a person is under 18 until 12:01 AM of their 18th birthday.2
Example: An 18-year-old man performs oral sex on his girlfriend, who is one day shy of turning 18. This is oral copulation with a minor because there was oral-genital contact with a person under 18.
Juveniles Accused of Oral Copulation With a Minor
You can be charged with oral copulation even if you were a minor (under 18) yourself when the oral sex act occurred—so long as the prosecution can prove that you understood that what you were doing was “wrong.”
According to Burbank criminal defense attorney Neil Shouse:
“Charging a minor with oral copulation on a minor can seem irrational—since the defendant themself is technically a “victim” of the crime too. And most prosecutors in California don’t make it a priority to prosecute teenagers for engaging in oral sex with other teenagers. But that doesn’t mean it can’t happen—and it does.”
An oral copulation on a minor case where you are also a minor will probably be tried in the California juvenile court system.3
2. Penalties
The punishment for violating PC 287 depends on the minor’s age, whether you used force or fear, and whether you acted alone:
| “Oral copulation with a minor” case | California sentence and sex offender tier* |
| Minor was under 18 PC 287(b)(1) (This crime is a wobbler, meaning it can be prosecuted as a misdemeanor or a felony.) | Misdemeanor: Up to 1 year in jail or summary probation or Felony: 16 months, 2 years, or 3 years in prison or formal probation Tier I sex offender, though the judge can waive your registration requirement if the minor was at least 14 and less than 10 years younger than you. |
| You were over 21, and minor was under 16 PC 287(b)(2) | Felony: 16 months, 2 years, or 3 years in prison or formal probation Tier I sex offender, though the judge can waive your registration requirement if the minor was at least 14 and less than 10 years younger than you. |
| Minor was under 14 and more than 10 years younger than you PC 287(c)(1) | Felony: 3, 6, or 8 years in prison or formal probation Tier II sex offender |
| Minor was under 14, and you used force or fear PC 287(c)(2)(B) | Felony: 8, 10, or 12 years in prison Tier III sex offender |
| Minor was 14 to 17, and you used force or fear PC 287(c)(2)(C) | Felony: 6, 8, or 10 years in prison Tier III sex offender |
| You acted in concert with another person, you used force or fear, and minor was under 14 PC 287(d)(2) | Felony: 10, 12, or 14 years in prison Tier III sex offender |
| You acted in concert with another person, you used force or fear, and minor was 14 to 17 PC 287(d)(3) | Felony: 8, 10, or 12 years in prison Tier III sex offender |
* You have to register as a sex offender for:
| |
Failure to register as a sex offender is a crime in and of itself.4
Prison v. Jail
If you are convicted of oral copulation with a minor as a felony, any incarceration will be served in state prison, not county jail. This is because PC 287 does not qualify for PC 1170(h) felony sentencing.
If you were convicted of oral copulation with a minor not using force or fear, you can shave off half your sentence with “good conduct credits.” If there was force or fear, then good conduct can take off only 15% of your sentence.
Three Strikes Law
Oral copulation with a minor is considered both a violent felony under PC 667.5(c) as well as a serious felony under PC 1192.7.
Therefore, oral copulation is also a strike offense, which means you face enhanced penalties and reduced “good conduct credits” if you get convicted of a second or third strike later on. (Note that oral copulation with a minor without force in violation of PC 287(b)(1) is not a strike offense.)
Loss of Gun Rights
Any felony conviction – including oral copulation with a minor – will strip you of your gun rights for life. Possessing a gun following a felony conviction is itself a felony crime under PC 29800.
Immigration and Occupational Consequences
Oral copulation with a minor can be considered a crime involving moral turpitude (CIMT).
Therefore, any professional licenses you have may be suspended or revoked. Plus if you are a non-citizen, you risk being deported from the U.S. after serving your sentence.5
Expungements
Only misdemeanor cases of oral copulation with a minor may be expunged from your criminal record. To be eligible, you must have successfully completed your sentence and are not currently facing charges or serving another sentence.
Even though there are many benefits of expungement, it will not relieve you of your duty to register as a sex offender.6
Even oral copulation with a minor close to the defendant’s own age can lead to a jail sentence.
3. Defenses
Here at Shouse Law Group, we have represented literally thousands of people charged with sex crimes such as oral copulation with a minor. In our experience, the following defenses have proven very effective with prosecutors, judges, and juries.
(Note that consent is not a defense because minors are under the age of consent and therefore incapable of legally consenting to oral copulation.)
You Actually and Reasonably Believed the Minor was Over 18
You are not guilty of oral copulation with a minor if you:
- actually believed that the minor was over 18, and
- that belief was reasonable.
(This defense will not apply, however, if you are accused of oral copulation with a minor under 14 who is more than 10 years younger than you.)7
Evidence we use to support this “mistake of fact” defense includes:
- Statements by the “victim” that they were at least 18,
- The victim’s appearance, clothes, makeup, etc., and
- The place or context in which you met them (for example, at a bar that requires patrons to show an ID).
You Were Falsely Accused
Every day, we see people get falsely accused of oral copulation with a minor. Frequently, the accuser is someone who had a close relationship with the defendant—and may want to see them get in trouble because of
- jealousy, or
- a romantic relationship gone sour.
If this is the case, we use investigative tools—such as private polygraph tests and finding alibis—to convince the prosecutor that you are being framed.
The Police Committed Misconduct
There are many ways that the police in your case may have violated your constitutional rights, such as by
- searching you or your property without a valid search warrant (or without a lawful reason to conduct a warrantless search),
- coercing your confession, or
- entrapping you.
Often, we can use the police’s own bodycam footage against them to demonstrate to the court that the state’s evidence was unlawfully obtained. If the court agrees, it can “suppress” this evidence – which may leave the state with too weak a case to prosecute.
You Were Intoxicated or Insane
In rare cases, we have been able to get PC 287 charges dropped by showing that our clients were intoxicated or legally insane at the time of the alleged crime. Evidence we rely on includes:
- eyewitness accounts,
- medical records,
- video footage, and/or
- expert testimony.
4. Statute of Limitations
The California statute of limitations for oral copulation with a minor expires on the victim’s 40th birthday. However, the prosecutor can still bring charges within a year after:
- The victim files a police report alleging oral copulation against a minor,
- All other statutes of limitations have ended, and
- The allegation is backed up by independent information (not a mental health professional’s opinion)
The district attorney can also prosecute within one year after your identity is determined by DNA testing.8
5. Related Crimes
- lewd acts with a minor (PC 288) – touching a child under 16 for sexual purposes
- oral copulation by force, fear, violence, duress, or menace (PC 287) – this also includes scenarios where the victim is very intoxicated or mentally disabled
- rape (PC 261) – non-consensual sexual intercourse
- statutory rape (PC 261.5) – consensual sexual intercourse with a minor
Additional Resources
Refer to the following for help:
- Association for the Treatment of Sexual Abusers (ATSA)— ATSA offers referrals, programs and resources for those suffering from sexual compulsions and sexual disorders.
- Sex Addicts Anonymous (SAA) – 12-step program to overcome sex addiction.
- Substance Abuse and Mental Health Services Administration (SAMHSA) – 24/7 confidential helpline offering referrals
- Sex Addiction – Article and guidance by AddictionHelp.org.
Legal References:
- Penal Code 287 PC. The full language of the statute reads as follows:
(a) Oral copulation is the act of copulating the mouth of one person with the sexual organ or anus of another person.
(b) (1) Except as provided in Section 288, any person who participates in an act of oral copulation with another person who is under 18 years of age shall be punished by imprisonment in the state prison, or in a county jail for a period of not more than one year. (2) Except as provided in Section 288, any person over 21 years of age who participates in an act of oral copulation with another person who is under 16 years of age is guilty of a felony.
(c) (1) Any person who participates in an act of oral copulation with another person who is under 14 years of age and more than 10 years younger than he or she shall be punished by imprisonment in the state prison for three, six, or eight years. (2) (A) Any person who commits an act of oral copulation when the act is accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for three, six, or eight years. (B) Any person who commits an act of oral copulation upon a person who is under 14 years of age, when the act is accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, shall be punished by imprisonment in the state prison for 8, 10, or 12 years. (C) Any person who commits an act of oral copulation upon a minor who is 14 years of age or older, when the act is accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, shall be punished by imprisonment in the state prison for 6, 8, or 10 years. (D) This paragraph does not preclude prosecution under Section 269, Section 288.7, or any other provision of law. (3) Any person who commits an act of oral copulation where the act is accomplished against the victim’s will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat, shall be punished by imprisonment in the state prison for three, six, or eight years.
(d) (1) Any person who, while voluntarily acting in concert with another person, either personally or by aiding and abetting that other person, commits an act of oral copulation (A) when the act is accomplished against the victim’s will by means of force or fear of immediate and unlawful bodily injury on the victim or another person, or (B) where the act is accomplished against the victim’s will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat, or (C) where the victim is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act, shall be punished by imprisonment in the state prison for five, seven, or nine years. Notwithstanding the appointment of a conservator with respect to the victim pursuant to the provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime described under paragraph (3), that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving legal consent. (2) Any person who, while voluntarily acting in concert with another person, either personally or aiding and abetting that other person, commits an act of oral copulation upon a victim who is under 14 years of age, when the act is accomplished against the victim’s will by means of force or fear of immediate and unlawful bodily injury on the victim or another person, shall be punished by imprisonment in the state prison for 10, 12, or 14 years. (3) Any person who, while voluntarily acting in concert with another person, either personally or aiding and abetting that other person, commits an act of oral copulation upon a victim who is a minor 14 years of age or older, when the act is accomplished against the victim’s will by means of force or fear of immediate and unlawful bodily injury on the victim or another person, shall be punished by imprisonment in the state prison for 8, 10, or 12 years. (4) This paragraph does not preclude prosecution under Section 269, Section 288.7, or any other provision of law
(e) Any person who participates in an act of oral copulation while confined in any state prison, as defined in Section 4504 or in any local detention facility as defined in Section 6031.4, shall be punished by imprisonment in the state prison, or in a county jail for a period of not more than one year.
(f) Any person who commits an act of oral copulation, and the victim is at the time unconscious of the nature of the act and this is known to the person committing the act, shall be punished by imprisonment in the state prison for a period of three, six, or eight years. As used in this subdivision, “unconscious of the nature of the act” means incapable of resisting because the victim meets one of the following conditions (1) Was unconscious or asleep (2) Was not aware, knowing, perceiving, or cognizant that the act occurred. (3) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraud in fact. (4) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraudulent representation that the oral copulation served a professional purpose when it served no professional purpose.
(g) Except as provided in subdivision (h), any person who commits an act of oral copulation, and the victim is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act, shall be punished by imprisonment in the state prison, for three, six, or eight years. Notwithstanding the existence of a conservatorship pursuant to the provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving consent.
(h) Any person who commits an act of oral copulation, and the victim is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act, and both the defendant and the victim are at the time confined in a state hospital for the care and treatment of the mentally disordered or in any other public or private facility for the care and treatment of the mentally disordered approved by a county mental health director, shall be punished by imprisonment in the state prison, or in a county jail for a period of not more than one year. Notwithstanding the existence of a conservatorship pursuant to the provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving legal consent.
(i) Any person who commits an act of oral copulation, where the victim is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused, shall be punished by imprisonment in the state prison for a period of three, six, or eight years.
(j) Any person who commits an act of oral copulation, where the victim submits under the belief that the person committing the act is someone known to the victim other than the accused, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief, shall be punished by imprisonment in the state prison for a period of three, six, or eight years.
(k) Any person who commits an act of oral copulation, where the act is accomplished against the victim’s will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official, shall be punished by imprisonment in the state prison for a period of three, six, or eight years.
As used in this subdivision, “public official” means a person employed by a governmental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to be a public official.
(l) As used in subdivisions (c) and (d), “threatening to retaliate” means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death.
(m) In addition to any punishment imposed under this section, the judge may assess a fine not to exceed seventy dollars ($70) against any person who violates this section, with the proceeds of this fine to be used in accordance with Section 1463.23. The court shall, however, take into consideration the defendant’s ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision. - Judicial Council of California Criminal Jury Instructions CALCRIM 1082 – Oral Copulation With Person Under 18 (Pen. Code, § 287(b)(1)):
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant participated in an act of oral copulation with another person;
AND
2. The other person was under the age of 18 when the act was committed.Oral copulation is any contact, no matter how slight, between the mouth of one person and the sexual organ or anus of another person. Penetration is not required.
[It is not a defense that the other person may have consented to the act.]
[Under the law, a person becomes one year older as soon as the first minute of his or her birthday has begun.]See CALCRIM 1015 (“Sexual Organ A man’s “sexual organ” for purposes of Penal Code section 287 includes the penis and the scrotum.”). - In re Paul C. (1990) 221 Cal.App.3d 43, 49. (“We conclude a minor under age 14 may be adjudged responsible for having committed the subject offenses [oral copulation of a minor] upon clear proof of the minor’s knowledge of wrongfulness as required by section 26.”). See also In re T.A.J. (1998) 62 Cal.App.4th 1350 (“Penal Code section 261.5, subdivision (b) [California’s statutory rape law; comparable to oral copulation with a minor law], makes it a misdemeanor for “any person” to have sexual intercourse with a minor who is no more than three years older or younger than the perpetrator. Does this statute infringe a constitutional privacy right of minors to engage in consensual sexual intercourse? Is the statute unconstitutional as applied to appellant who was a minor himself at the time of the alleged offense, and therefore, an individual within the class of persons protected by the statute? In affirming the finding of the trial court determining appellant to be a ward of the court, we answer both questions in the negative.”).
- PC 290. PC 290.018.
- See also People v. Zuniga (Cal.App. 2014) 225 Cal.App.4th 1178.
- PC 1203.4.
- CALCRIM 1082 (“[The defendant is not guilty of this crime if (he/she) reasonably and actually believed that the other person was age 18 or older. The People must prove beyond a reasonable doubt that the defendant did not reasonably and actually believe that the other person was at least 18 years old. If the People have not met this burden, you must find the defendant not guilty of this crime.]”). See People v. Olsen (1984) 36 Cal.3d 638, 649. (“The legislative purpose of section 288 [and, by extension, Penal Code 287(c)(1)] would not be served by recognizing a defense of reasonable mistake of age. Thus, one who commits lewd or lascivious acts with a child, even with a good faith belief that the child is 14 years of age or older, does so at his or her peril.”)
- Penal Code 801.1(a) & (b) PC; Penal Code 803(f) & (g) PC.