California Penal Code Section 288(a)(c)(2) – Oral Copulation by Force, Fear, or Threats

This crime is a sex crime in Los Angeles County and there’s a number of elements that have to be proven by the prosecutors if the case were to go to trial.  Any time I’m consulting with a client regarding an oral copulation matter, and they’re charged with California Penal Code Section 288(a)(c)(2), we go over the elements of the case so that we can really 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 gonna tell the jury in Los Angeles that in order 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 whosever giving the oral sex in the equation has to not consent to it, which is a very difficult thing I think for the prosecutors to prove, because why don’t they just shut their mouth and not orally copulate the other person?  However, sometimes there are ways to threaten somebody or force them or intimidate them into orally copulating you and that’s where the prosecutors tend to look at when filing and prosecuting these cases.

They’re going to 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 real and they force them to orally copulate you, then that would be good enough to get you for the crime.  So, there’s all sorts of different scenarios that come up.

Jury Instructions – CALCRIM 1015

In the jury instructions which are CALCRIM 1015 Jury Instructions, that’s the one used in LA County courts, and it basically also talks about threatening to retaliate against someone when there was a reasonable possibility that the threat would be carried out.  A threat to retaliate is a threat 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 in some way and if this threat could be carried out and it makes sense under the circumstances, then that would be enough to satisfy the element of force or fear related to an oral copulation case in Los Angeles County.

Another areas that they’ve written in the jury instructions, so it obviously comes up, is threatening to use the authority of a public office to incarcerate, arrest or deport someone.  A public official is a person employed by a government agency who has the authority to incarcerate, arrest or deport.  The other person must have reasonably believed that the defendant was a public official even if he or she was not.  So, this covers the scenario where somebody, like a police officer for example, tries to get another person to orally copulate them or causes another person to orally copulate them pursuant to Penal Code Section 288(a)(c)(2) because they say, listen, if you don’t do this, I’m going to arrest your 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, but they did so under duress because they were scared.

The jury instruction goes on to talk about oral copulation is any contact no matter how slight between the mouth of one person and the sexual organ or anus of another person.  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 purposes of this oral copulation by force or fear which carries with it prison.

Retaining an Experienced Defense Lawyer

So, this is a very, very serious crime and obviously, if you’re charged with this you better get to an attorney who has handled these type of cases before and is very familiar with them.  The jury instruction also says, in order 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 by itself 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, threaten to kill them and force them to orally copulate them.  That would obviously be a situation where the person is going to be arrested and charged, and likely convicted if that could be proven.

Basically, the jury instruction says, an act is accomplished by force if a person uses enough physical force to overcome the other person’s will.  So, if you’re stronger 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 copulated 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 that has been used tin this type of a crime and it’s mentioned in the jury instructions, is the defendant is not guilty of forceable oral copulation if he or she 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 talking about, if the guy thinks that the woman is amenable to it and agreeable to it and it seems reasonable under the circumstances and a woman orally copulates him, for them to say later, well wait a minute, I felt scared.  He was much bigger than me, but there’s really no reason to substantiate that.  There’s no force involved.  There’s no threats involved and under the circumstances they were in a dating relationship or they went on a date, they went back to the house.  There was kissing, and the next thing you know, the defendant stands up and is orally copulated.  Under that Scenario, and this is what this instruction is really referring to there’s no way that the person is going to 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 his one of the things that’s mentioned, if the person does that, and someone orally copulates him because of this menace term, it basically means a threat, a statement or act showing an intent to injure somebody.  So, if you threaten somebody or you do something or say something that it looks like you’re going to injure them if they don’t orally copulate you, and under those circumstances it’s reasonable for them to believe that, then obviously you’re going to be in a position where you’re going to get charged and have to defend yourself of this crime.

The last thing that should be touched on when you’re talking about oral copulation by force, fear or threat, is that fear element, and the jury instruction says an act is accomplished by fear if the other person is actually and reasonably afraid but is actually unreasonably afraid and the defendant knows the person is afraid and takes advantage of it.  So, if some really is scared and the defendant knows it and then forces that person to orally copulate them, that’s going to satisfy this fear element and the person can be prosecuted under Penal Code Section 288(a)(c)(2). See related: Oral Copulation with a Minor.

Contact Our Law Firm for Help

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.