Oral copulation is more often referred to as oral sex and is legal in California when performed between consenting adults in private. When does this act become a criminal offense? State law is complex, but a clear distinction is placed on when oral sex is allowed and when it is illegal.

What is Oral Copulation?

Oral copulation is specifically defined as sexual contact that involves one person’s mouth and a second person’s genital area or anus. It becomes a criminal act when any of the following elements are present:

  • Consent was not given by both parties

  • One party is a minor

  • The act was done in public or within view of the public

Many states include oral copulation in their sex crime laws, like public indecency, sexual abuse, or statutory rape. However, California has a specific code section that covers oral copulation.

Is it a Sex Crime?

Oral copulation is only a sex crime if the act was performed:

  • With the use of force, fear, or threats

  • With a minor

  • In public

When oral copulation charges involve force or a minor, registration as a sex offender may be required.

Oral Sex Using Fear or Force

When someone uses violence, duress, threats, or menace to obtain oral sex, it becomes a non-consensual sexual act. Also included in this criminal category is oral copulation performed with someone who is not able to consent. For example, unconscious or intoxicated individuals cannot consent to a sexual act. Additionally, people with a mental disorder or physical disability may also not be able to provide consent.

Oral Sex with a Minor

Oral copulation with a minor is illegal in California. If this sexual act involved someone who was under the age of consent, then it is considered a sex crime. The age of consent is 18 in California, and anyone younger than this cannot legally consent to any sexual act.

Some states have Romeo and Juliet laws, which excuse sexual acts with a minor if the adult party is close in age to the minor party. However, California does not have any such law. Instead, the penalties for sexual acts with a minor are less severe if the age gap is three years or less.

Oral Sex in Public

Performing oral copulation in public is illegal. Involved parties could be charged with a misdemeanor associated with this act.

What is the Law in California?

California Penal Code 287 makes oral copulation involving force or fear a criminal act. This Code section also deals with oral copulation involving:

  • A minor

  • Parties who cannot consent

  • Parties in a state prison

If you have pending oral copulation charges involving the use of force, fear, or threats, the case against you must be proven beyond a reasonable doubt. It must be shown that:

  • You committed oral copulation with another person

  • The other person was not a consenting adult

  • You used violence, duress, threat of retaliation, fear of bodily injury, or force

What are the Penalties of a Conviction?

Depending on the specifics of the case, oral copulation can be charged as a misdemeanor or felony. The penalties vary based on the type of charge and the circumstances of the offense. Oral copulation involving a minor and oral copulation through force or fear are most often charged as felonies, while oral copulation in public is a misdemeanor in most cases.

If you are convicted of oral sex using force, threat, or fear, you could face up to eight years in state prison and as much as $10,000 in fines. Acts of oral copulation with a minor can bring varying penalties based on the age of the minor. If the minor was under 14 years old, a conviction can bring up to 8 years in prison if you were at least ten years older than the minor party.

Contact a criminal defense attorney to discuss your case if you have questions about the maximum penalties you may face. The minimum and maximum penalties vary widely depending on the details of each oral copulation case.

What are Some Legal Defenses Against Oral Copulation Charges?

The most common defenses that people charged with oral copulation use are false accusations and consent. In many situations, the case is based on the word of one person versus the word of another. If you or your lawyer can prove that the accusations are false, then the charges may be dismissed, or you could be found not guilty.

Because consent is a major factor in deciding whether oral copulation is legal or illegal, proving that the other party gave consent is a strong defensive strategy. Keep in mind, however, that consent is not a valid defense in cases involving public oral copulation or oral copulation involving a minor.

An Experienced Criminal Defense Attorney in Santa Ana, CA

When you are facing misdemeanor or felony sex offense charges, you need aggressive representation to protect your rights. The Law Office of Sheny Gutierrez has defended Californians charged with oral copulation and other offenses for 15 years. Contact us to schedule a free consultation.