Information on the crime of oral copulation against a minor is found at California penal code § 287(b) [PC 287(b)]. This article is a brief overview of the law, punishment, and common defenses related to PC 287(b)(1). For further information on California oral copulation crimes, please contact our sex crimes criminal defense attorneys today for a free consultation.
PC 287(b) Law
…any person who participate in an act of oral copulation with another person who is under the age of eighteen (18) is guilty of oral copulation with a minor (PC 287(b)(1) Abbrev.).
…any person over the age of twenty-one (21), who participates in an act of oral copulation with another person who is under the age of sixteen (16), is guilty of oral copulation of a minor under sixteen (16) [PC 287(b)(2) Abbrev.).
Oral Copulation Legal Definition: Oral copulation is the act of copulating [to have sexual intercourse] with the mouth of one person and the sexual organ or anus of another person (PC 287(a)). Oral copulation technical definition is fellatio (oral copulation of a male), or cunnilingus (oral copulation of a female). Common slang terms for oral copulation include “oral sex,” “blowjob,” and many more.
PC 287(b) Punishment
PC 287(b)(1) Classification: The crime of oral copulation on a minor under eighteen (18) is classified as either a misdemeanor, or alternatively, as a felony. This means that PC 287(b)(1) “wobbles” between two charging classifications (felony or misdemeanor). The crimes of oral copulation against a minor under sixteen (16), or PC 287(b)(2), is always charged as a felony.
Note: Whether the defendant is charged with a felony or misdemeanor PC 287(b)(1) offense depends on many factors, including the amount of force used to commit oral copulation, the defendant’s criminal history, the circumstances of the case, the terms of any negotiated settlement between the defendant and the district attorney, if any, and more.
Felony PC 287(b)(1) Prison Sentence: If found guilty of felony oral copulation under PC 287(b)(1), the defendant will face either a probation sentence (See Probation Sentence), or a fourteen (14) month, two (2) year, or three (3) year prison sentence.
Note: Whether the defendant receives a low sentence of fourteen (14) months, the middle sentence of two (2) years, or the “aggravated” sentence of three (3) years, after a conviction for felony oral copulation charged under PC 287(b)(1), depends on the circumstances of the case, the defendant’s criminal history, and more.
Misdemeanor PC 287(b)(1) Jail Sentence: If found guilty of misdemeanor oral copulation under PC 287(b)(1), the defendant may face up to a year in the county jail.
Felony PC 287(b)(2) Prison Sentence: If found guilty of felony oral copulation under PC 287(b)(2), the defendant will face a probation sentence (See Probation Sentence), or a sixteen (16) month, two (2) year, or three (3) year prison sentence.
Note: Whether the defendant receives a low sentence of sixteen (16) months, the middle sentence of two (2) years, or the “aggravated” sentence of three (3) years, after a conviction for oral copulation under PC 287(b)(2), depends on the circumstances of the case, the defendant’s criminal history, and more.
Probation Sentence: for PC 287(b) Crimes: A probation sentence is a period of supervision, as opposed to a jail or prison sentence. A probation sentence is allowed in misdemeanor PC 287(b)(1) oral copulation cases without a showing of “special” circumstances; however, to receive a probation sentence in a felony PC 287(b)(1) or PC 287(b)(2) oral copulation case, the judge will have to find “special” circumstances in the case that justify a probation sentence, as opposed to a jail or prison sentence.
Special Circumstance Justifying Probation Sentence: The “special circumstances” that justify a probation sentence in any felony PC 287(b) oral copulation case are non-exclusive, but generally include the following: lack of criminal sophistication; victim does not desire prosecution; terms of a probation sentence are agreed upon by the district attorney and defense counsel; defendant has no criminal history; defendant is amenable to probation terms, and more.
Note: Length of probation is generally two (2) years in misdemeanor cases of oral copulation and up to five (5) years in felony oral copulation cases. However, if the defendant is “domestically” related to the victim in a misdemeanor oral copulation crime, then the minimum probationary period is three (3) years (PC 1203.097).
Jail v. Prison Sentence: If the defendant is convicted of misdemeanor PC 287(b)(1), then he or she will be sentenced to either probation, or a local county jail. However, all felony oral copulation crimes, including PC 287(b) offense, are subject to California state prison sentences.
Prison Sentence Terms: If the defendant is not granted a probation sentence in a felony oral copulation case, then his or her incarceration must be served in a California state prison. No part of that prison sentence may be split (served partially out of prison on work release),or suspended.
Note: Prison sentences related to felony PC 287(b) crimes are subject to reduced “good behavior” credits while in prison, which means the defendant must serve at least eighty-five percent (85%) of his or her prison sentence.
Sex Offender Registration: All misdemeanor and felony oral copulation criminal convictions require sex offender registration with the Department of Justice (DOJ). The length of sex offender registration for misdemeanor and felony violations of PC 287(b)(1), and felony violations of PC 287(b)(2) are covered in California’s Sex Offender Registration Tier System.
Crime Involving Moral Turpitude: The crime of oral copulation, also known as “oral cop” in some charging documents, is a “crime involving moral turpitude,” or CIMT. A CIMT, including both misdemeanor and felony PC 287(b) crimes, carry more direct and indirect negative consequences than non-CIMTs. These negative consequences apply more harshly to non-US citizens, licensed professionals, and defendants enlisted in the military.
Additional Punishment: In addition to a possible probation, jail, or prison sentence, a conviction for any oral copulation crimes will result in criminal protective orders in favor of the oral copulation victim, restitution to victim, court fines and security fees, civil lawsuits against the defendant, loss firearm rights (felony PC 287(b) cases), lengthy probation and parole commitments, mandatory registration as a sex offender (PC 290), and more.
Defense to PC 287(b)
Every oral copulation against a minor case is different; therefore, the defense to any case is unique to that case. However, some defenses are more common to PC 287(b) cases, including reasonable mistake of fact as to the age of the minor; statute of limitations, insufficient evidence to prove the defendant guilty beyond a reasonable doubt, coerced confession, illegal search and seizure, and more.
Defense of Consent: The defense of consent is not available in PC 287(b)(1) or PC 287(b)(2) cases. This is because the minor cannot legally consent to engage in oral copulation.
For more information on the crime of oral copulation with a minor (PC 287(b)(1) & PC 287(b)(2)), contact our sex crimes criminal defense attorneys today for a free consultation. Our team of high experienced and award-winning sex crimes defense attorneys have successfully handled hundreds of misdemeanor and felony sex crimes in the Inland Empire and we can help you too. Call today!
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