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Oral Copulation by Intoxication

Penal Code 287(i) PC - Oral Copulation of Intoxicated Person

California Penal Code 287(i) PC makes it a crime to perform oral sex on someone who is too intoxicated to give consent, called “oral copulation of an intoxicated person.”
Oral copulation is defined as any contact, no matter how slight, between the mouth of one person and the sexual organ or anus of another. Penetration is not required.

You can violate PC 287(i) when you commit an act of oral copulation when the victim is prevented from resisting by any intoxicating or anesthetic substance or any controlled substance, and you knew of their condition or reasonably should have known. As noted, penetration of the sexual organ is not required to prove any oral copulation of an intoxicated person. 

Notably, PC 287(i) does not define a blood alcohol level (BAC) level to determine whether the victim is too intoxicated to consent or resist sexual touching. Instead, the facts and circumstances of the case are used to determine whether someone was too intoxicated to voluntarily consent or resist sexual activity, such as oral sex.

PC 287(i) says, “Any person who commits an act of oral copulation, where the victim is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused, shall be punished by imprisonment in the state prison for a period of three, six, or eight years.”

Suppose someone is at a party where everyone is drinking alcohol. During all the activity, one of the guys notices a girl is highly intoxicated and having trouble keeping her balance. He leads her by the hand into a bedroom, lays her on the bed, and performs oral copulation on her. She did not resist or complain.

In that case, he could still be charged with oral copulation of an intoxicated person even though she did not resist because she was too inebriated to give sexual consent. It does not matter whether he was also drunk.

What Must Be Proven for a Conviction?

To prove guilt and convict a defendant of violating Penal Code 287(i) oral copulation of an intoxicated person, the district attorney must prove all the elements of the crime beyond a reasonable doubt, including the following:

  • The defendant committed an act of oral copulation on someone, 
  • An intoxicating, anesthetic, controlled substance prevented them from resisting and
  • The defendant knew or reasonably should have known that the effect of the substances prevented the other person from resisting.

Someone is “prevented from resisting” if they are so intoxicated that they cannot give legal consent. To provide legal consent, someone must be able to exercise reasonable judgment. Simply put, a person must be able to understand and weigh the following:

  • Physical nature of the act,
  • Moral character and
  • Probable consequences. 

“Legal consent” is defined as consent given freely and voluntarily by someone who knows the nature of the act.

What are the Penalties?

California Penal Code 287(i) oral copulation upon an intoxicated person is a felony offense. If found guilty, the punishments could include the following:

  • Three, six, or eight years in state prison,
  • A fine of up to $10,000.
  • Formal felony probation,
  • Criminal protective order (CPO),
  • Victim restitution,
  • Civil lawsuit,
  • Loss of rights to own or possess a firearm.

The length of the prison sentence (three, six, or eight) will typically depend on different factors, such as the following:

  • Any mitigating or aggravating factors,
  • Defendant's criminal history,
  • The level of harm caused to the victim,
  • The level of sophistication to commit the crime,
  • The level of remorse shown by the defendant,
  • The relationship between the defendant and the victim,
  • The terms of a negotiated plea bargain with the district attorney.

Suppose a defendant is convicted of oral copulation of an intoxicated person and has entered the sentencing phase. In that case, the judge will consider the following:

  • A “low term” prison sentence of three years (mitigated),
  • A “midterm” prison sentence of six years (presumptive), or
  • A ”high term” prison sentence of eight years (aggravated).

If the court determines that the defendant took advantage of someone from a position of trust to commit the crime, they will typically impose an aggravated prison sentence of eight years.


Notably, a probation sentence without incarceration is not an option in PC 287(i) cases. In other words, any conviction for oral copulation of an intoxicated person results in a prison sentence.

Split or Suspended Sentence

Notably, no portion of a PC 287(i) prison sentence can be “split” or “suspended.” This means a defendant must serve their full sentence in a state prison, and no part of their prison sentence can be served alternatively on an out-of-custody work release program.

Sex Offender Registration

Under California Penal Code 290 PC, any conviction of an oral copulation crime will result in mandatory sex offender registration, which is a three-tier system. However, a PC 287(i) conviction normally results in at least 20 years of sex registration (tier two).

The length of sex offender registration is typically decided by the defendant's risk of recidivism determined on a static-99 report and other factors.

Three Strikes Law

Oral copulation on an intoxicated person is not a “strike” under California Penal Code 1192.7 and 667.5 PC, known as the three strikes law. However, if a defendant already has two prior “strike” convictions and is then convicted of PC 287(i), then it might be considered a third “strike,” which can result in a life in prison sentence.

Crime Involving Moral Turpitude

Oral copulation on an intoxicated person is considered a crime involving moral turpitude (CIMT). These are crimes that are considered morally wrong and could have collateral consequences.

For example, a non-citizen alien could face negative immigration consequences, such as deportation or denied entry into the United States. A licensed professional like a doctor or lawyer could have their license suspended or revoked. 

What are Related Crimes?

Several California laws are related to Penal Code 287(i) oral copulation of an intoxicated person, such as the following:

  • Penal Code 287 PC oral copulation by force, fear, or threats. This crime can be charged when someone commits an act of oral copulation when the act is accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury.
  • Penal Code 287 PC oral copulation with a minor. This law makes it a crime to engage in oral copulation with a minor under 18, which is defined as any contact between someone's mouth with another person's penis, vagina, or anus.
  • Penal Code 243.4 sexual battery. This law makes it a crime to touch someone's intimate parts against their will for the purpose of sexual gratification, arousal, or abuse.
  • Penal Code 261 PC rape. This law makes it a felony crime to use force, fear, threats, or fraud to have non-consensual sexual intercourse with someone.

What are the Common Defenses?

If you are under investigation or charged with Penal Code 287(i) PC oral copulation with an intoxicated person, PC 287(i), our California sex crime lawyers can utilize different strategies to obtain the best possible outcome, such as the following:

  • Alleged victim gave consent,
  • Alleged victim was not too intoxicated,
  • Insufficient evidence,
  • False accusation,
  • Mistaken identity,
  • Mistake of the fact of level of intoxication,
  • Police misconduct,
  • Failure to read Miranda rights,
  • Coerced confession,
  • Statute of limitations.

While your level of intoxication is not typically valid in cases of oral copulation with an intoxicated person, perhaps we can argue that you did not fully understand that your actions were illegal due to being highly intoxicated.

California Penal Code 287(i) PC - Oral Copulation of Intoxicated Person
PC 287(i) makes it a crime to perform oral sex on someone who is too intoxicated to consent.

Often, in these types of sex crime cases, both parties are highly intoxicated and may not remember all the details leading up to unlawful oral copulation.

Sometimes, both are so severely intoxicated that they do not know the difference between right and wrong. A defendant may be convicted of both oral copulation of an intoxicated person and oral copulation of an unconscious person.

Perhaps we can argue that the alleged victim was sufficiently sober to consent to oral copulation voluntarily or they were reasonably and safely able to resist oral copulation. 
Notably, to consent, someone must act freely and voluntarily and know the nature of the act. Evidence that you and the alleged victim were in a dating relationship is insufficient to establish consent.

Perhaps we can negotiate with the district attorney for reduced charges, case dismissal, or persuade them not to file formal criminal charges (DA reject).

You might have some post-conviction relief options, including withdrawing a guilty or no-contest plea if convicted. Depending on the case details, you might also be able to appeal the conviction. Contact us for more information or a free case review. The Hedding Law Firm is based in Los Angeles, CA.

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