Oral sex or copulation is not unlawful when it occurs with the other partner's consent. Therefore, when your sexual partner agrees to oral sex, they cannot argue they were forced into the act. Oral sex is the touching or interaction between the mouth and someone else’s genitals or anus. However, it becomes illegal when the deed is non-consensual and is achieved using coercion, pressure, or fear. The laws on forced oral sex are complex, which is why they are discussed further below for better understanding of the offense, its penalties, and possible defenses.

Forcible Oral Copulation at a Glance

Section 287 of the state’s Penal Code describes forced oral sex or copulation as an interaction between somebody’s mouth and another party’s intimate parts without prior permission. Per the statute, oral sex is unlawful when:

  • It is accomplished through fear, force, threats, illegal injury, coercion or violence, or
  • It happens because one of the parties is intoxicated, unconscious, or unable to legally consent to the act because of a mental condition, physical or developmental impairment, or underage.

Examples of forced oral sex are:

  • A lady who threatens to illegally injure another using a knife if they do not perform oral copulation.
  • A man who threatens to kidnap a child if they do not agree to oral sex.
  • A man who performs oral sex or copulation with a mentally ill woman.
  • A young girl who threatens to harm a married man’s family if they do not engage in oral copulation with her.

From these examples, you can infer that many acts could be considered as oral sex using force. So, you could face arrest and charges for PEN 287 violation due to many factors other than force applications.

Elements of Forced Oral Sex

Oral copulation is legal. Nonetheless, if it is achieved by force or pressure, you can be apprehended and face charges for PEN 287 (c) violations. If you face this charge, it is not the end of the road for you because you are not guilty until the court proves otherwise. It is the responsibility of the prosecutor who preferred the charges against you to prove the elements or facts of the case to obtain a conviction. These elements are:

  1. You Committed an Oral Sex or Copulation Act with Someone Else

You can only face forcible oral copulation charges if your mouth or intimate parts interact with another person’s mouth, genitals, or anus. Any contact or touching, regardless of how slight, amounts to oral sex. The prosecutor does not need to establish that there was penetration. Again, demonstrating ejaculation after the act is not required.

If you are a man, the intimate part entails your penis and scrotum.

  1. The Other Individual Had Not Consented to the Act

Another fact of the case the prosecutor should prove is that you lacked permission from the other person to take part in the sexual conduct. Approval and consent means that the other person agreed to the act willingly and freely and they understood the conduct’s nature.

You should know that even if the victim approves the deed, the consent can be withdrawn. So, if the victim approved the act but immediately withdrew the consent, you will still be guilty if you continue. Besides, just because you are dating the accuser, married, or have just divorced does not mean there cannot be a lack of approval or consent.

Again, the apparent victim telling to wear a condom fails to meet the consent threshold. Because of these implied consent scenarios, you could face PEN 287 violation charges and be wrongfully convicted. Therefore, you should employ an attorney to defend you and explain the circumstances leading to the charges if you were reasonably convinced the victim and approved the conduct to avoid conviction.

  1. You Accomplished the Act Utilizing Fear or Pressure

The prosecutor has to prove that the oral copulation was obtained through the following means:

  • Force, whereby you apply minimum energy to subdue the purported victim’s will.
  • Threats to apply force on the accuser and your conduct under the circumstances could make a sober person in the same situation act against their will.
  • Threats to inflict unlawful harm on the victim.
  • Retaliation threats if the victim does not comply with your demands.

Oral Sex Involving a Highly Intoxicated Individual

You could be guilty of PEN 287 violation even when the oral sex is not accomplished using force or threats. Participating in oral sex involving a highly intoxicated individual, you face charges for forcible oral copulation. The prosecutor will file the charges if:

  • The said victim was highly intoxicated due to drugs, controlled substances or alcohol, thus rendering them incapable of approving the deed.
  • You recognized or must have realized the purported accuser would not have approved the deed if they were sober.

Many people engage in oral sex when one of the parties is intoxicated, making it very difficult to prosecute PEN 287 violation charges. It is challenging to tell if a person approves of the conduct when they are impaired by alcohol or drugs. Nevertheless, for purposes of forcible oral copulation, an individual is deemed highly intoxicated when they cannot understand or weigh their actions' morality, physical nature, and repercussions.

Therefore, the DA must clear these gray areas by proving that the intoxication of the victim satisfies the criteria provided under PEN 287.

As the defendant in a situation where the victim was intoxicated, you can assert in your defense that the said victim was not highly drunk or drugged and understood the morality, physical nature, and consequences of their conduct. Nonetheless, you must provide strong evidence to back up your assertion.

Oral Sex Comprising an Unconscious Party

A PEN 287 violation happens when you participate in oral copulation involving an unconscious party or one that is oblivious of their deed’s nature, and you were aware or must have known they could not resist. Actual unconsciousness is unnecessary in these cases for the prosecutor to obtain a conviction. All they must show is that the apparent victim:

  • Was unconscious or asleep.
  • Was ignorant of the deed that was happening between you and them.
  • Was oblivious of the details of the conduct because you concealed or tricked them.

Oral Sex on a Disabled Individual

You can face charges for forcible oral copulation when you perform oral sex with a disabled party. When prosecuting a case in these circumstances, the prosecutor should demonstrate that:

  • You participated in oral sex comprising an individual with a developmental disability, mental condition, or physical infirmity.
  • The disability impeded the capacity to comprehend the deed’s nature and repercussions.
  • You were aware or ought to have recognized that their disability restricts them from approving the deed.

Penalties for Forced Oral Sex

A PC 287 violation is a felony that attracts several penalties upon sentencing. The penalties include:

  • Formal probation in cases where the supposed victim is disabled.
  • 3, 6, or 8 years of prison incarceration.
  • $10,000 in monetary court fines.

If the disabled person is younger than 18, you, the defendant, will face sentence enhancement. You will face 6, 8, or ten years of prison incarceration when the purported victim is over 14 and 8,10, or 12 years when the purported victim is younger than 14.

Oral Sex in Concert

You will face sentence enhancement if you engage in forced oral sex in concert or with at least one party. The enhancement will be imposed whether the other person committed or aided you with the deed. The possible consequences of forced oral sex or copulation with the help of someone else are:

  • 5, 7, 9 years of incarceration if the said accuser is a child.
  • 8, 10, or 12 years of incarceration when the accuser is older than 14.
  • 10, 12, or 14 years of prison time when the accuser is younger than 14.

Formal Probation in PEN 287

When you are sentenced to a felony in California, the judge can impose formal probation in place of the sentence. Probation means you will serve part of the prison incarceration sentence outside jail under supervision. Not all arrestees convicted of PEN 287 violation are eligible for probation. Also, it does not come automatically. An experienced defense attorney must arbitrate with the prosecutor and obtain the sentence.

When determining your formal probation eligibility, the prosecutor considers your criminal history. When you have many prior felony sentences, you will not qualify for the program. However, when you have an excellent criminal record, you can be eligible for felony probation.

Another consideration is your attitude toward the felony probation program. The sentence is not mandatory. Therefore, if it is not in your best interest, you can choose to serve your prison sentence. Again, if you have been previously on the program, the judge will check your performance, which will influence their decision. A previous probation violation will disqualify you from the program.

Even though oral sex must involve fear or pressure to amount to a PC 287 violation, some offenses are more severe than others. Therefore, you will not be eligible for probation if the crime is brutal.

Formal probation for forced oral sex ranges from thirty-six to sixty months. If you are lucky to be sentenced to the program, you must adhere to the following instructions:

  • Attend mandatory sex predator counseling.
  • Mandatory finalization of a treatment or counseling program.
  • Performance of community hours.
  • Regular meetings with your supervision officer.

If you violate any of these conditions, the court will revoke the program and send you back to prison to serve the original sentence imposed for the crime.

Sex Predator Registration Requirement

The harshest penalties of a felony forced oral sex sentence is the obligation to enter the registry as a sexual predator for life. PEN 287 violation falls under tier three offenders. This means you must enlist with the area police every year within the first week of your birthday or whenever you switch residences.

The embarrassment and social stigma of being a registrant are almost as worse as a prison sentence. The justice department updates citizens on sex offenders every time they complete their prison sentences. Therefore, you can be sure that anyone who visits the Megan’s Law website can see your name and the sex offense that led to your conviction.

Apart from being prohibited from visiting particular places like learning institutions or parks, you can sometimes be attacked by an angry mob. Living the rest of your life stigmatized and under threat of attack is a consequence you do not want to encounter. Therefore, when faced with a forced oral sex charge, you do not want to take it lightly. You must hire an attorney to help you defend your reputation, career, and freedom.

Possible Defenses for Forcible Oral Copulation

The penalties of PEN 287 contravention are life-altering. The most effective way to prevent these consequences is by enlisting the services of an experienced sex crimes defense attorney. The attorney will work tirelessly to secure a charge reduction or dismissal. The defense strategies that can help achieve this are:

  1. False Allegations

A conviction for forced oral sex does not require proof of injury, allowing many alleged victims to falsely blame others for the crime out of spite or revenge. Most of these crimes happen at night or when people are intoxicated. Without witnesses, a person with ill motives can accuse anyone of the crime. Luckily, when you have an experienced legal expert, you can collect sufficient evidence to unwrap the origin of the allegations, resulting in a charge reduction or dismissal.

  1. The Victim Approved the Deed

Approval from the victim before oral copulation can save you many problems later. You could prevent a conviction if the victim consented by presenting details to back the assertion. Nonetheless, demonstrating the supposed victim gave consent is challenging. You need a knowledgeable attorney to build a convincing argument. However, if the victim was a minor, a disabled person, or highly intoxicated, claiming you had consent will not hold as evidence in the case.

  1. Incomplete Proof

Unlike sex-related crimes like rape, where there is physical proof, forced oral sex lacks physical evidence. The case is built upon your testimony against that of the victim. Usually, the prosecutor lacks tangible proof to prove the crime's elements and secure a sentence. Your defense can assert that the prosecutor has inadequate evidence to meet the evidentiary standard beyond a reasonable doubt. Therefore, the case should be dismissed or the charges lowered to a lesser offense. The attorney can also use the results of a private polygraph test to convince the prosecutor that the case is weak and should be dropped.

Forcible Oral Copulation Statute of Limitations

Alleged accusers of sex offenses do not have strict timelines to report the offenses. These ordeals are traumatizing and can take time before the victim can speak. The law knows this, which explains the extended timeline for reporting the violation.

If a victim was younger than 18 before the offense happened, the timeline for reporting the matter lapses when they turn forty years. Then again, the prosecutor should file charges 12 months after an alleged victim reports an incident of forced oral sex with a child or the expiration of all timelines provided by the law. Also, if independent sources confirm allegations, the district attorney will have a year to file charges.

The timeline for reporting an offense when the accuser is an adult is ten years. In most PEN 287 violation cases, the prosecutor should bring charges within twelve months after identifying you as the perpetrator by DNA.

Record Expunction

The consequences of a conviction under PEN 287 are devastating and last for a lifetime. With a record and lifetime sexual registration, no employer will be interested in hiring you. Landlords will be reluctant to lease their apartments to you, primarily when the building is close to a school or park. Your life will be dented forever unless you request an expunction of the record.

You are eligible for expunction under PEN 1203.4 if you did not serve any prison time for forcible oral sex. Therefore, if the court sentenced you to formal probation, you can file an expunction petition after completing the program and adhering to all its conditions.

Again, you qualify for expunction if you do not currently face any charges or serve probation for other crimes. https://mostbet-games.net/eg/

If you file the motion for expunction and it is successful, you will enjoy the following benefits:

  • You can apply for state licensure.
  • You can confidently say no when an employer asks if you have ever been convicted.
  • Employers cannot victimize you based on your record.
  • You cannot be impeached as a court witness.

However, you should note that an expunction will not terminate your duty to register under the sex registry.

Find the Right Sex Offenses Defense Attorney Near Me

If you face a charge for forced oral sex or other sex offense, your future is at stake because a sentence will result in prison incarceration and the sex predator registration obligation. It would help if you spoke to an attorney that understands these cases and what is at stake. At the Los Angeles Criminal Lawyer, we can answer all your questions about the charges and defend you in court. Call us at 424-333-0943 to discuss your case today.