Forcible oral copulation in California is oral copulation accomplished against a person's will by force, violence, duress, menace, or fear of immediate and unlawful bodily injury, whatever the person's age. Under Penal Code 287(c)(2)(A), the base adult-victim charge, it is a felony punished by three, six, or eight years in state prison, and a conviction requires lifetime sex offender registration.
What does Penal Code 287 cover besides the forcible, adult-victim charge?
Penal Code 287 covers oral copulation accomplished by several different means, not force alone, and each means carries its own sentence.
Subdivision (a) defines the act itself: "Oral copulation is the act of copulating the mouth of one person with the sexual organ or anus of another person." The rest of the section lists the circumstances that make it a crime.
Caption: Penal Code 287, adult-applicable subdivisions and their sentences.
| Subdivision | What it covers | Sentence |
|---|---|---|
| 287(c)(2)(A) | Against the person's will, by force, violence, duress, menace, or fear of immediate and unlawful bodily injury | 3, 6, or 8 years in state prison |
| 287(c)(3) | Against the person's will, by a threat to retaliate in the future, with a reasonable possibility the threat will be carried out | 3, 6, or 8 years in state prison |
| 287(d)(1) | Acting in concert with another person, by force or fear, a retaliation threat, or against a person who cannot legally consent because of a mental disorder or disability | 5, 7, or 9 years in state prison |
| 287(f) | A person unconscious of the nature of the act, such as asleep or deceived about what was happening, when the defendant knows it | 3, 6, or 8 years in state prison |
| 287(g) | A person who cannot legally consent because of a mental disorder or a developmental or physical disability, known or reasonably knowable to the defendant | 3, 6, or 8 years in state prison |
| 287(i) | A person prevented from resisting by an intoxicating, anesthetic, or controlled substance, known or reasonably knowable to the defendant | 3, 6, or 8 years in state prison |
| 287(j) | A person who submits believing the defendant is someone else the person knows, a belief the defendant induced by artifice, pretense, or concealment | 3, 6, or 8 years in state prison |
| 287(k) | Against the person's will, by a threat to use a public official's authority to jail, arrest, or deport the person or someone else, when the person reasonably believes the defendant is an official | 3, 6, or 8 years in state prison |
| 287(e) and (h) | Oral copulation while confined in a prison or detention facility, or while both people are confined for mental health treatment and the victim cannot legally consent | State prison, or county jail up to 364 days |
Subdivisions (b), (c)(1), (c)(2)(B), (c)(2)(C), (d)(2), and (d)(3) apply only when the other person is a minor, each with its own sentence; the forcible ones run higher than the adult-victim terms above, up to 14 years. The firm's oral copulation by force with a minor page covers those minor-victim provisions in full.
What must the prosecution prove for the forcible, adult-victim charge, and what can change the sentence?
For the base 287(c)(2)(A) charge, the prosecution must prove an act of oral copulation against the other person's will by force, violence, duress, menace, or fear of injury.
That fear must be of immediate and unlawful bodily injury to the victim or another person. Three rules can change the sentence actually imposed:
- Middle term. Under Penal Code 1170(b), the court may not sentence above the middle of the three listed terms unless aggravating facts were admitted by the defendant or found true beyond a reasonable doubt, though prior convictions may be shown through certified records alone.
- No probation. Penal Code 1203.065(a) bars probation outright for a conviction under 287(c)(2), (c)(3), (d), (f), or (i). Subdivision (k) allows probation only "in unusual cases where the interests of justice would best be served."
- The One Strike law. Penal Code 667.61(c)(7) brings oral copulation under 287(c)(2), (c)(3), or (d) into California's One Strike sentencing law. A listed aggravating circumstance that is pleaded and then admitted or found true, such as personally using a weapon or inflicting great bodily injury, turns the sentence into 15 years to life or 25 years to life, rising to 25 years to life or life without parole when the victim is a minor.
Is a PC 287 conviction a strike, and does it require sex offender registration?
Every conviction under subdivision (c) or (d) is a violent felony, and so a strike, and every PC 287 conviction requires sex offender registration except a narrow age-gap case.
The registration tier Penal Code 290 sets depends on the specific subdivision of the conviction. The firm's sex offender registration tiers answer explains how the ten-year, twenty-year, and lifetime tiers work and how a registrant can later petition to end registration where the law allows it.
Caption: strike status and registration tier by subdivision.
| Subdivision | Strike status | Registration tier (Penal Code 290) |
|---|---|---|
| 287(c)(2) | Violent felony and serious felony | Tier three: life |
| 287(d) | Violent felony; serious felony when committed by force or fear | Tier three: life |
| 287(c)(1) and (c)(3) | Violent felony | Tier two: 20-year minimum |
| 287(f) and (i) | Not separately listed as a strike | Tier three: life |
| 287(g) and (h) | Not separately listed as a strike | Tier two: 20-year minimum |
| 287(b), (e), (j), and (k) | Not separately listed as a strike | Tier one: 10-year minimum |
A subdivision that is "not separately listed" can still become a serious felony on other grounds, such as personally inflicting great bodily injury or personally using a dangerous or deadly weapon. Under Penal Code 290(c)(3), a person convicted under subdivision (b), the minor-victim provision, does not have to register if that conviction is the only one requiring it and the person was not more than ten years older than the minor, though a court can still order registration in that situation.
How does an adult-victim PC 287 charge differ from the minor-victim tiers under the same statute?
When a forcible act involves a person under 18, Penal Code 287's subdivisions (c)(2)(B), (c)(2)(C), (d)(2), and (d)(3) set higher prison ranges, up to 14 years.
The three-to-eight-year range covered above applies no matter the person's age, so the minor-victim tiers sit on top of it rather than replacing it. The firm's page on oral copulation by force with a minor covers those enhanced tiers, along with registration and probation questions specific to a minor-victim allegation, in detail.
What should you do first if you are accused under PC 287?
Read the complaint or police report for the exact PC 287 subdivision charged, because the subdivision decides the sentence range, strike status and registration tier.
Keep phones, messages and other records about the accusation as they are, without deleting anything, and do not contact the accuser about it. If a court issues a protective order, follow it to the letter. Talk to a lawyer before any police interview, and bring the paperwork, your next court date and a written timeline to the consultation.
What defenses come up in a PC 287 case?
Defenses usually test the three things the prosecution must prove, that oral copulation occurred, that the other person did not consent, and that the charged means was used.
The jury instruction for this charge, CALCRIM No. 1015, includes this optional paragraph on a reasonable belief in consent:
"The defendant is not guilty of forcible oral copulation if he or she actually and reasonably believed that the other person consented to the act. The People have the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe that the person consented."
Under Penal Code 261.6(b), a dating or marital relationship is not enough by itself to show consent. A lawyer will also check whether the evidence fits the means charged, whether messages, device records and the timeline match the accusation, and whether the identification is reliable. Which defenses apply depends on the facts of each case.
How does forcible oral copulation relate to other force-based sex charges?
Several other California sex offenses use the same force, violence, duress, menace, or fear standard, each with its own penalty range.
Forcible sodomy, under Penal Code 286(c)(2), uses the identical force standard as 287(c)(2)(A) and carries the same three-to-eight-year base term. See the firm's forcible sodomy answer for that charge.
Rape, under Penal Code 261(a)(2), is the parallel force-based offense defined around sexual intercourse rather than oral copulation. See the firm's rape defense page for that charge.
Frequently asked questions
Is Penal Code 287 the same as the old Penal Code 288a?
Yes. Section 288a was renumbered as section 287, effective January 1, 2019. Older statutes, such as Penal Code 290 and 667.5, still refer to "former Section 288a," so a conviction recorded under the old number still counts under them.
Can a PC 287 charge ever be reduced to a misdemeanor?
Only subdivisions (b)(1), (e), and (h) allow a county jail sentence at all; every forcible count under (c) or (d) is a felony only. A wobbler reduction, where one is available, does not end a registration duty once a person is found guilty of a registrable offense.
Is there a deadline to file a PC 287 charge?
Subdivisions (c)(2), (c)(3), (d), (f), (g), (i), and (k) have no filing deadline for conduct on or after January 1, 2017, or earlier conduct whose deadline had not already run by that date. Other subdivisions involving a victim under 18 generally may be filed before the victim's fortieth birthday, or otherwise within ten years. The firm's older sex offense charging deadlines answer walks through those other deadlines in detail.
Is diversion ever available in a PC 287 case?
Not when registration would be required. Mental health diversion under Penal Code 1001.36 and misdemeanor diversion under Penal Code 1001.95 both exclude any offense that would require registration if the person were convicted, which leaves only a narrow subdivision (b) case within the age-gap exception as a possible candidate.
Can a PC 287 conviction be expunged?
Penal Code 1203.4(b) excludes subdivision (c) from dismissal relief entirely. For other subdivisions where dismissal is granted, Penal Code 290.007 keeps the registration duty in place afterward unless the person separately obtains a certificate of rehabilitation and qualifies for relief under Penal Code 290.5.
Will a PC 287 conviction appear on the Megan's Law website?
For an adult-court conviction under subdivision (c) or (d), yes. Penal Code 290.46(b) directs the Department of Justice to post the registrant's name, photograph, description, and home address on the Megan's Law website. Other subdivisions follow that section's separate tier rules for what gets posted.
Talk to a lawyer
The Law Offices of David S. Chesley offers a free consultation and is available 24/7 to discuss a Penal Code 287 charge, with payment plans and Se habla español. Call (800) 755-5174 or request a free consultation online.