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Oral Copulation by Force or Fear

California Penal Code 287 PC- Oral Copulation by Force, Fear, or Threats

This sex crime in California has several elements that have to be proven by the prosecutors if the case were to go to trial.  Whenever I'm consulting with a client regarding an oral copulation matter, and they're charged with California Penal Code 287 PC, we go over the case elements.

We need to talk about what the prosecutors have to prove, what they did, and why they think the alleged victim is making the claims that they're making.

In a jury trial, the Judge is going to tell the jury in Los Angeles that for a defendant to be convicted of this particular Penal Code Section, the government has to prove the defendant, number one, committed an act of oral copulation with someone else so this is where some sort of penetration or touching of the mouth of another person on someone's penis or even if the forced touching on someone's anus would be good enough for this oral copulation Penal Code Section.

Elements of the Crime

Number two, the other person did not consent to the act, so whoever giving the oral sex in the equation has to not agree to it, which is a tricky thing I think for the prosecutors to prove because why don't they just shut their mouth and not orally copulate other person?

However, sometimes there are ways to threaten somebody or force them or intimidate them into orally copulating you, and that's what the prosecutors tend to look at when filing and prosecuting these cases.

They will look at element number three, which says the defendant accomplished the act by force, violence, duress, menace, or fear of immediate and unlawful bodily injury to somebody. 

So, in other words, if you threaten somebody and they're scared, and the threat sounds authentic, and they force them to copulate with you orally, then that would be good enough to get you for the crime.  So, there are all sorts of different scenarios that come up.

Jury Instructions – CALCRIM 1015

The jury instructions, CALCRIM 1015 Jury Instructions, are used in LA County courts. It also talks about threatening to retaliate against someone when there was a reasonable possibility of carrying out the threat.

A threat to retaliate is to kidnap, unlawfully restrain or confine or inflict extreme pain, serious bodily injury, or death.  So, that's talking about – someone says, listen, I'm going to kill you if you don't do this.  I'm going to get one of your family members.

I'm going to retaliate against you somehow. If this threat could be carried out and it makes sense under the circumstances, that would be enough to satisfy the element of force or fear related to an oral copulation case.

Another area that they've written in the jury instructions, so it comes up, is threatening to use the authority of a public office to incarcerate, arrest or deport someone.  A public official is employed by a government agency that can detain, arrest or deport.

The other person must have reasonably believed that the defendant was a public official, even if they were not.  So, this covers the scenario where somebody, like a police officer, for example, tries to get another person to copulate them orally or causes another person to copulate them under Penal Code Section 288 (a) (c) (2) orally.

Because they say, listen, if you don't do this, I'm going to arrest you, or I'm going to deport you, and the other person believes that.  They're the police, and even though they consented and agreed to do it, they did so under duress because they were scared.

The jury instruction says that oral copulation is any contact, no matter how slight, between one person's mouth and another person's sexual organ or anus.

Penetration is not required.  So, it's just the touching of the mouth.  So, even if the penis is not inserted in the other person's mouth, if the mouth touches it, that would be enough for this oral copulation by force or fear, which carries with it a prison.

Retaining an Experienced Defense Lawyer

So, this is a very, very serious crime, and if you're charged with this, you better get to an attorney who has handled these types of cases before and is very familiar with them.  The jury instruction also says that to consent, a person must act freely and voluntarily and know the nature of the act.

Evidence that the defendant and the person dated or were married is not enough to constitute consent.  So just because people have been going out, they're married. Still, somebody can't snap/grab another person by the back of the head, threatening to kill them and force them to copulate orally.

That would be a situation where the person will be arrested and charged and likely convicted if that could be proven.

The jury instruction says an act is accomplished by force if a person uses enough physical strength to overcome the other person's will.  So, if you're more potent than the other person, and you grab them, and you hold them, and they can't move, and you force your penis in their mouth, that would be the crime of forced oral copulation, and you would be subject to prison and being convicted of Penal Code Section 288(a)(c)(2).

Legal Defenses for Oral Copulation by Force

One defense used in this type of crime mentioned in the jury instructions is that the defendant is not guilty of forceable oral copulation if they actually and reasonably believe that the other person consented to the act.

The People have not met this burden; you must find the defendant not guilty.  So, that's about if the guy thinks that the woman is amenable to it and agreeable to it, and it seems reasonable under the circumstances. A woman orally copulates him to say later, well, wait a minute, I felt scared.

He was much bigger than me, but there's no reason to substantiate that.  There's no force involved.  There are no threats involved, and under the circumstances, they were in a dating relationship, went back to the house, or went on a date.

There was kissing, and the next thing you know, the defendant stood up and was orally copulated.  Under that Scenario, and this is what this instruction is referring to, there's no way that the person will be convicted of this Penal Code Section because that particular person under that scenario would not reasonably think that there was anything wrong with the situation.

When they talk menace, which is mentioned, if the person does that, and someone orally copulates him because of this menace term, it means a threat, a statement, or an act showing an intent to injure somebody.

So, if you threaten somebody or do something or say something that looks like you're going to injure them if they don't orally copulate with you, under those circumstances, it's reasonable for them to believe that you will be in a position where you will get charged and have to defend yourself from this crime.

The last element that should be touched on when talking about oral copulation by force, fear, or threat is the fear element. The jury instruction says an act is accomplished by fear if the other person is actually and reasonably afraid but is unreasonably scared. The defendant knows the person is worried and takes advantage of it.

Contact the Hedding Law Firm 

So, if some really are scared and the defendant knows it and then forces that person to copulate them orally, that will satisfy this fear element, and the person can be prosecuted under Penal Code Section 287 PC. See related: Oral Copulation with a Minor.

So, if you've got one of these cases, pick up the phone.  Call me.  We'll sit down in the privacy of my office and figure out exactly what I can do to help you. Contact the experienced Los Angeles sex crime defense lawyers at the Hedding Law Firm to review the details of your case.

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