I. California Penal Code 287: Oral Copulation of a minor

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Legal Definition: Formally known under PC 287, 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 to the charge if the minor consents to the act. That is because the age of consent in California is 18, therefore a minor cannot legally consent to an act of oral copulation with someone over the age of 18.

For a person to be convicted of a violation of PC 287, the prosecution must prove the following:

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.

II. What does this mean?

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This charge requires an act of oral copulation by either performing it on the minor or the minor performing the act on you. Age is extremely important here, even a person who is 18 years old having a dating relationship with a 17-year-old whom he goes to high school with, can be found guilty of the charge of oral copulation of a minor.

III. Penalties

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If you are convicted of a violation of PC 287(b)(1), you could face up to one year in county jail if charged under this section as a felony offense. If you are charged with this section as a felony, you could face upwards of 16 months, 2, or three years in State Prison.

Under PC 287(b)(2) you are over the age of 21, and the other person is under 16 years old, you could be sentenced to State Prison for upwards of 16 months, two or three years if charged as a felony under this section. This means, this section is not a wobbler offense, like the PC 287(a), and you can only be charged here as a felony offense.

For any conviction under this section, you would serve 50% of your actual sentence. You would be required to register as a Sex Offender for 10 years as a Tier 1 Offender. This is one of the rare offenses under PC 287 where the crime is considered a “wobbler” offense. A wobbler offense is one that, based on certain mitigating or aggravating facts, can be charged as a misdemeanor offense, or a felony offense.

IV. Other relevant violations under this section

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1. PC 287(c)(1)

Legal Definition: In addition to the above offense, the charges can get much more severe if the minor is under the age of 14 years old, and you are more than 10 years older than the minor.

Penalties: If you are convicted of a violation of PC 287(c)(1), you could be sentenced to State Prison for upwards of 3, 6, or 8 years where you must serve 85% of that sentence in a State Prison, not a local county jail. You would also be required to register as a Sex Offender for 20 years as a Tier II offender. 

2. PC 287(c)(2)(A)

Legal Definition: If the above act is committed against the minor 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, the sentence is much harsher as well.

Penalties: If you are convicted of a violation of PC 287(c)(2)(A), you could be sentenced to State Prison for upwards of 3, 6, or 8 years where you must serve 85% of that sentence in a State Prison, not a local county jail. You would also be required to register as a Sex Offender for 20 years as a Tier II offender. This is also considered a serious and violent felony under California Law, and you would also receive a Strike on your record under the Three Strikes Law.

3. PC 287(c)(2)(B)

Legal Definition: If the above act is committed against the minor, who is under 14 years of age, and it is 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, the sentence is much harsher as well.

Penalties: If you are convicted of a violation of PC 287(c)(2)(B), you could be sentenced to State Prison for upwards of 8, 10, or 12 years where you must serve 85% of that sentence in a State Prison, not a local county jail. You would also be required to register as a Sex Offender for 20 years as a Tier II offender. This is also considered a serious and violent felony under California Law, and you would also receive a Strike on your record under the Three Strikes Law.

4. PC 287(c)(2)(C)

Legal Definition: If the above act is committed against the minor, who is 14 years of age, and it is 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, the sentence is much harsher as well

Penalties: If you are convicted of a violation of PC 287(c)(2)(B), you could be sentenced to State Prison for upwards of 6, 8, or 10 years where you must serve 85% of that sentence in a State Prison, not a local county jail. You would also be required to register as a Sex Offender for 20 years as a Tier II offender. This is also considered a serious and violent felony under California Law, and you would also receive a Strike on your record under the Three Strikes Law.

V. Common Defenses

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1. Statute of Limitations
2. Insufficient Evidence
3. Reasonable Mistake as to Age
4. Violation of your Rights
5. False Accusations
6. Coerced Confessions

Using the common defense of a mistaken belief as to the victim’s age is important. Understand that the good faith belief must in fact be reasonable. If it is clear that you are speaking to a 12-year-old child. then you cannot later claim you did not know their age. Further, if age is ever discussed between you and the minor, then know that will come up, and you will be convicted of knowingly engaging in oral copulation with a minor. This offense does happen often on dating sites, where the minor misrepresents their age, and they look close enough to that age that it isn’t something questioned. This is a successful use of defense, as you did, at the time, have a reasonable mistake as to the victim’s age at the time of the act.

VI. Call Today

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