Overview
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Oral copulation by force is the offense of touching the mouth of one person upon the sexual organ or anus of another when the victim does not give permission to do so
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This offense does not require penetration (or ejaculation); any offensive contact by force is sufficient, no matter how slight.
California’s Oral Copulation by Force Statute:
California Penal Code Section 288(a) details the specific aspects of Oral Copulation by Force, Fear or Threats. In order to prove a defendant guilty of oral copulation by force, fear or threats, the prosecutor must prove that:
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1. The defendant did commit an act of oral copulation upon another;
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2. The conduct was not consensual on the part of the victim, and
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3. The defendant made this happen because of:
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A. Force or fear: force, violence, duress, menace or fear of immediate bodily injury (not necessarily to the victim)
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B. Future threats of bodily harm: threatening to retaliate or harm another
Note: the defendant must appear to have the capability to actually express the threat. The threat may be one of bodily harm or one of pain, or to restrain another without their permission
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C. threat of official action – when one uses their authority to arrest or deport someone
The threat must seem viable; i.e., the actor must be believed to have authority to express the threat.
Consent in Oral Copulation
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For someone to participate with consent, they must have knowledge of what is happening and voluntarily participate in the act and have the capacity to give their consent
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Consent is free agreement and having the ability, capacity and freedom to make a conscious, aware choice
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Permission does not necessarily have to be verbal
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Children cannot give consent
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Persons may be unable to give consent if they are under the influence of drugs or alcohol, unconscious, physically or mentally ill, unconscious, asleep or otherwise without full cognition and awareness
Marriage or Relationship is Not Indicative of Consent:
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If a couple is in a marital or dating relationship, this is not sufficient by itself to satisfy the meaning of consent
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In some states the marital partners are not bound by consent requirements
Penalties for Oral Copulation by Force: California
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In California, there are different sentences for oral copulation by force, depending on the ages of the parties involved
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If the victim was an adult:
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Fines: Up to $10,000
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Prison: 8 years, maximum
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If the victim is between 14 and 18:
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Prison: 10 years, maximum
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If the victim is under 14:
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Prison: 12 years, maximum
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If the victim is less than 10:
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Prison: 15 years to life
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Mandated lifetime sex offender
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Supervised release
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Permanent criminal record
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Difficulty obtaining employment, residence
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