Introduction

Oral Copulation by Force, Fear, or Threats (California Penal Code section 287) is an extremely serious sex crime – almost as egregious as Forcible Rape (California Penal Code section 261). Not only is it always prosecuted as a felony, but it may also be charged as a “Violent-Felony Strike” (California Penal Code section 667(a)&(b)), which could entail significant sentencing enhancements if you have certain prior felony convictions.

Whatever the specific nature of the charge, this crime always entails you (allegedly) causing non-consensual contact between your mouth and the purported victim’s genitalia or anus, or vice-versa. The illegal contact must result from you using force or the threat thereof or, alternatively, while the victim is unconscious, drunk, high on drugs, disabled, or otherwise incapable of giving legal consent.

Not surprisingly, the penalties become more severe if the conviction involves a minor, e.g.:

Oral Copulation with a Minor (California Penal Code section 287); and

Engaging in Oral Copulation with Child 10 Years of Age or Younger (California Penal Code section 288.7(b)).

Note regarding new DA’s Special Directives

On December 8, 2020, Mr. George Gascón took over as the new District Attorney of LA County and immediately turned the local criminal justice world on its head by issuing nine “Special Directives”, including for the purpose of ending prosecutions with draconian prison sentences. See: latimes.com.

The most controversial of these was Special Directive 20-08 (“S.D. 20-08”), which mandated that all Deputy District Attorneys no longer seek sentencing enhancements, including for prior Strike offenses, absent extraordinary circumstances. See: georgegascon.org.

This created major blowback from many, if not most, of Mr. Gascón’s tough-on-crime line prosecutors -- who ignored the fact that two-thirds of LA County voters voted for him and his reformist policies. As a result, he felt compelled to issue an Amendment thereto wherein he specified that going forward, prosecutors had the discretion to seek sentencing enhancements in all cases involving sexual abuse (with adult and minor victims) where the charge qualifies as a Strike offense. See: da.lacounty.gov.

California Statutes – Sex Crimes -- Oral Copulation by Force or Fear

The following statutes cover the primary Oral Copulation offenses:

Oral Copulation by Force, Fear, or Threats (California Penal Code section 287)

Oral Copulation in Concert (California Penal Code section 287(d))

Oral Copulation with a Minor (California Penal Code section 287(c))

Obviously, Oral Copulation crimes cover a fairly broad spectrum of criminal activity, with the variations dependent upon your age and the age of the purported victim. For example:

If you’re a minor and the victim is a minor, so long as you’re not older by more than three years, and so long as the sexual contact would otherwise have been legally consensual but for your ages, you will be charged with a misdemeanor.

If you were twenty-one or younger at the time, and the victim was sixteen or seventeen, the charge is a “Wobbler” (California Penal Code section 17(b)), which means you could be prosecuted for either a misdemeanor or a felony. And, of course, if you were over 21, then you’ll definitely get charged with the latter. And the sentences will increase the younger the victim is (see below).

Engaging in Oral Copulation with Child 10 Years of Age or Younger (California Penal Code section 288.7(b))

If you are at least ten years older than a victim who is nine years or younger, then you’ll be prosecuted under this statute.

Sex Crimes Convictions – Oral Copulation By Force or Fear

Oral Copulation by Force, Fear, or Threats (California Penal Code section 287)

Oral Copulation in Concert (California Penal Code section 287(d))

Oral Copulation with a Minor (California Penal Code section 287(c))

The punishments for these Oral Copulation offenses upon conviction are as follows:

If you’re convicted of a misdemeanor, then your maximum jail sentence is 12 months. Penal Code section 288 (b)(1).

If the victim is 13 years or younger, and you’re at least ten years older, then the low, mid, and high prison terms will be three, six, or eight years, respectively. Pen. Code section 288(c)(1).

If the victim is an adult and you force him or her to engage in oral copulation by using force or threats, then you’ll get the exact same range. Pen. Code § 288(c)(2)(A).

If the victim is 13 years or younger, and you used force or threat of immediate physical harm, you’ll get for eight, ten, or twelve years. Pen. Code § 288(c)(2)(B).

If the same is done to a minor age 14 through 17, then the range is six, eight, or ten years. Pen. Code § 288(c)(2)(C).

If you force an adult victim to engage in oral copulation by threatening to retaliate against him/her in the future, and the victim reasonably believes you are capable of doing so, then the range is 3, 6, or 8 years. Pen. Code § 288(c)(3).

Oral copulation committed in concert with another perpetrator against the adult victim’s will by force, threat, threat of future retaliation (which, again, the victim reasonable believes you are capable of carrying out), or where the victim is incapable of giving legal consent because of a mental disorder or physical disability, then the range will be 5, 7, or 9 years.
Pen. Code § 288(d)(1).

If the same occurs with a victim age 13 or less, the range is ten, twelve, or fourteen years. Pen. Code § 288(d)(2).

If you orally copulate a victim who is unconscious or asleep, and you knew or reasonably should have known the same, then you’ll get 3, 6, or 8 years. Pen. Code § 288(f). The same range applies if you did so after intentionally drugging the victim. Pen. Code § 288(i). So, too, if you did so through deceit (e.g., you somehow made the victim believe you were his or her spouse). Pen. Code § 288(j).

Engaging in Oral Copulation with Child 10 Years of Age or Younger (California Penal Code section 288.7(b))

Even a first-time conviction hereunder will result in fifteen years to life in prison.

Sex Crimes – Oral Copulation By Force or Fear -- Registration Requirements

Virtually all of the foregoing oral-copulation convictions are considered to be “Tier-Three” registerable offenses pursuant to California’s Sex Offender Registration law (California Penal Code section 290). 

This means that once a year for the rest of your life, you’ll have to register your personal information, including your current residence, with your local police or sheriff’s department, or else face a possible felony charge. See Sex Offender Registration Act: Penalties for Violation (California Penal Code section 290.018). 

However, pursuant to 2020’s California Senate Bill SB-145, the only exception for sex-offender registration applies to a situation where the victim was 14 through 17 years old and you were either a minor yourself or no more than ten years older than him or her. 

Defenses to Sex Crimes Charges -- Oral Copulation By Force or Fear

The Judicial Council of California’s Criminal Jury Instructions (“CALCRIM”) provide the following defenses to the foregoing oral copulation charges:

  1. The victim legally consented or, alternatively, you reasonably believed he or she legally consented;

  2. You didn’t use force or threats, including of future retaliation (mitigation – i.e., you could still be charged for non-consensual oral copulation);

  3. You didn’t use deceit or deception (same);

  4. The victim was not reasonably placed in fear of imminent force or future retaliation;

  5. You didn’t voluntarily aid and abet the true perpetrator (e.g., he held a gun to your head and forced you to participate);

  6. The purported victim wasn’t actually intoxicated, high on drugs, unconscious, asleep, or mentally or physically disabled (and was otherwise capable of giving legal consent and did so);

  7. Alternatively, the victim was intoxicated, disabled, etc., but you did not know this, nor should you reasonably have known this;

  8. You weren’t pretending to be the purported victim’s spouse in a fraudulent manner (e.g., you were both role-playing);

  9. You reasonably believed the purported victim was at least 18 (this is in stark contrast to California’s so-called “Statutory Rape” law, i.e., Unlawful Consensual Sex with a Minor -- California Penal Code section 261.5, wherein your reasonable belief does not serve as a defense to actual intercourse).

FYI, the fact that the victim was your spouse, domestic partner, or lover will not serve as a valid defense. Nor will the fact that the victim initially legally consented but then subsequently changed his or her mind and communicated the same to you. Also, no one under 18 can ever legally consent – including if you, too, are under 18.

See CALCRIM number 1015 (“Oral Copulation by Force, Fear, or Threats -- Pen. Code § 287(c)(2) & (3), (k));

CALCRIM number 1016 (“Oral Copulation in Concert -- Pen. Code § 287(d)”);

CALCRIM number 1017 (“Oral Copulation of an Intoxicated Person -- Pen. Code § 287(a), (i)”);

CALCRIM number 1018 (“Oral Copulation of an Unconscious Person -- Pen. Code § 287(a), (f)”);

CALCRIM number 1019 (“Oral Copulation of a Disabled Person -- Pen. Code § 287(a), (g)”);

CALCRIM number 1021 (“Oral Copulation by Fraud -- Pen. Code § 287(a), (j)”);

CALCRIM number 1080 (“Oral Copulation with Person Under 14 -- Pen. Code § 287(c)(1)”);

CALCRIM number 1081 (“Oral Copulation with Minor: Defendant 21 or Older -- Pen. Code § 287(b)(2)”); and

CALCRIM number 1082 (“Oral Copulation with Person Under 18 -- Pen. Code § 287(b)(1)”).

Examples of Sex Crimes – Oral Copulation By Force or Fear

Long Beach man gets three decades to life in prison for sexually assaulting women with a handgun

During a four-year period (January 30, 2014 through January 12, 2018), Long Beach resident Ferdinand Flowers (31 when the first incident occurred) allegedly picked up at least thirteen female sex workers in DTLA in his car, pulled a gun on them, then drove them to industrial neighborhoods in Carson, and forced them to orally copulate him upon threat of death.

It remains unclear why it took a joint task force of LASD and LAPD sex crimes detectives so long to arrest him but they finally did.

In any event, after he was apparently presented with overwhelming evidence of his crimes, he pled nolo contendre to the following felonies on September 17, 2018:

Two counts of Oral Copulation by Force (California Penal Code section 287);

One count of Assault with Intent to Commit Oral Copulation (California Penal Code section 220); and

Personal Use of a Firearm During a Felony (California Penal Code section 12022.5).

As a result, in mid-March 2019, he received a 30-years-to-life sentence.

See: https://da.lacounty.gov/media/news/long-beach-man-sentenced-life-several-sexual-assaults

Female counselor at boys’ halfway house in La Verne sentenced to more than five years in prison

Beginning in early summer 2013, Azusa resident Jenna Richmond (age 24) commenced sexual relations with an underage male (age thirteen) while the former worked as a counselor supervising the latter at a juvenile halfway house in La Verne. One of the other young wards at the facility allegedly witnessed the sexual activity and notified another counselor at the facility.

As a result, on August 7, 2013 (two months after the initial sexual encounter), LASD sex crimes detectives began their investigation. After they arrested Richmond, the county District Attorney’s Office prosecuted her for a number of serious sex crimes.

Richmond, however, refused to accept any plea and, therefore, went all the way through a jury trial, where she was convicted of the following two felonies in mid-March 2014:

Oral Copulation with a Minor Under Age 14 (California Penal Code section 287); and

Lewd Acts with a Minor Child Under 14 (California Penal Code section 288).

Her sentence: almost six years in a California penitentiary, a decade-long no-contact order, and lifetime registration.

See: da.lacounty.gov.

Couple sentenced to prison 18 years after fleeing to Florida to escape sexual assault charges

In February 2000, romantic duo Joseph Green (then 35) and Chanell Warren (then 24) allegedly sexually assaulted an underage female (sixteen) in their recreational vehicle in South LA. At the time, the couple had directed and/or owned a private elementary school in the area, which is where they reportedly met the girl.

Someone filed a complaint with the LAPD the following month, but immediately thereafter, the couple fled to Florida. Amazingly, despite the fact that felony warrants had been issued for their arrest, they weren’t apprehended until more than 17-and-a-half years later (Oct. 2017). They were extradited back to Los Angeles County, where the District Attorney’s Sex Crimes Division charged them with various felonies.

On March 19, 2018, Green accepted a nolo contendre plea to the following:

A single felony count of Unlawful Consensual Sex with a Minor (“Statutory Rape”) (California Penal Code section 261.5); and

one felony count of Sodomy with a Person Under 18 Years of Age (California Penal Code section 286(b)(1)).

His sentence: 44 months (three-and-three-quarters years) in a California penitentiary plus lifetime registration.

Warran also accepted a nolo contendre plea, but to a different charge: Oral Copulation with a Minor (California Penal Code section 287).

Her sentence: 36 months in a penitentiary plus lifetime registration. It remains unclear if the couple was still together at the time of their arrest.

See: da.lacounty.gov.

An Example of Sex Crimes Cases -- Oral Copulation By Force or Fear Handled by the Los Angeles Defense Attorney Law Firm (LADALF)

The Los Angeles Defense Attorney Law Firm (LADALF) has represented dozens of defendants in Oral Copulation cases over the last 16 years (since March 2005). Often, these charges were included as part of other sex crimes, including those involving potential life sentences. The following is an example:

Two Life Sentences for Gang Rape of Minor & Kidnapping – all felonies dismissed

People v. J.C. (Van Nuys courthouse): Client was prosecuted for with twelve Violent-Felony Strikes – all sex crimes involving a minor – such as:

“Gang Rape” (Forcible Rape in Concert) (California Penal Code section 264.1(a));

Aggravated Kidnapping – Robbery, Rape, Other Sex Offenses (California Penal Code section 209(b));

Oral Copulation by Force, Fear, or Threats (California Penal Code section 287);

Oral Copulation in Concert of a Minor (California Penal Code section 287(d));

Forcible Sexual Penetration with a Foreign Object (California Penal Code section 289);

According to the DA’s Sex Crimes Division prosecutor assigned to the case, as well as several LAPD sex crimes detectives who investigated it, the client plus five male accomplices kidnapped, gang-raped, and sexually assaulted an underage female (sixteen) over the course of two days and nights.

As a result, the client plus three of the adult “accomplices” were facing multiple life sentences. (The other two “accomplices” were 17 years old.) After LADALF’s chief counsel Ninaz Saffari was hired by the client, she conducted an intensive investigation and essentially took charge of the entire case from her five co-counsel.

At the preliminary hearing, Ninaz cross-examined the girl in excruciating detail, making her repeat every single allegation against the six males, and particularly in regard to the client.

Then, once, Ninaz had locked down the girl’s elaborate story, Ninaz dropped a bombshell: she produced video footage that had been shot over the weekend confirming that every single claim had been an outright lie. She had made up the entire story to cover her tracks that weekend with her parents. Better yet, Ninaz was able to prove that she had done so several times in the past.

The girl was so rattled on the stand, she refused to even look at the video as Ninaz played it in court, or to even say another word. (Ninaz obtained the video after months of attempting to do so from a very reluctant witness as the girl’s father was a notorious gang member who had already threatened another witness in the same case.)

Result: The prosecutor immediately dismissed all felony charges against the client and his five co-defendants. By the following day, all six males went home.

The Los Angeles Defense Attorney Law Firm (LADALF)

LADALF’s Ninaz Saffari is one of the most experienced and successful sex-crimes defense attorneys in LA County. Most of her cases come through word of mouth from clients (such as J.C. in the preceding example) who were facing serious prison time, but who were either acquitted at trial, had their charges dismissed before trial (and sometimes before or shortly after the case is filed), or as a result of a highly favorable plea agreement that was simply too good to pass up.