In California, oral copulation of an incompetent person is charged under penal code § 287(g). This overview discusses the law, punishments, and common defenses related to PC 287(g). For further information, contact our sex crimes criminal defense attorneys today for a free consultation.
To begin, the term “oral copulation” is the act of copulating the mouth of one person with the sexual organ or anus of another person (PC 287(a)). “Copulating the mouth” is a reference to oral sex, or sexually motivated contact by the defendant to the genitals of another person. Medical terms for oral copulation are fellatio (mouth to penis) cunnilingus (mouth to vagina).
Note: It is a crime to perform oral copulation against an incompetent person, or to have an incompetent person perform oral copulation on either the defendant, or a third person (PC 287(g)).
PC 287(g) Law
…any person who commits an act of oral copulation, and the victim is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known, or reasonably should be known to the person committing the act, is guilty of oral copulation upon an incompetent victim (PC 287(g) Abbrev.).
Note: PC 287(g) requires the district attorney to prove that the incompetent person was incapable of granting consent. This is true even if the incompetent person is already a conservatee under a legal guardianship (PC 287(g) Abbrev.).
PC 287(g) Punishment
Prison Sentence: Oral copulation upon an incompetent person is classified as a felony in California. If found guilty of oral copulation of an incompetent person, the defendant could face three (3), six (6), or eight (8) years in a California state prison.
A probation sentence, without incarceration may be available in “special” PC 287(g) cases (See Probation Sentence).
Prison Term Selected: Whether the defendant is sentenced to three (3), six (6), or eight (8) years of prison after a conviction for PC 287(g) depends on the facts and circumstances of the case.
A criminal defense attorney will argue for the lowest prison term of three (3) years based on the presence of “mitigating” factors, while the district attorney will argue for the highest prison term of eight (8) years based on the presence of “aggravating” factors.
Mitigating & Aggravating Factors: Mitigating and aggravating factors considered in sentencing for PC 287(g) cases include the defendant’s criminal history, the level of sophistication of the offense, the harm caused to the victim, the remorse shown by the defendant, the terms of any negotiated plea bargain between the district attorney and defense counsel, whether the defendant confessed early in the case, the level of mental or physical incompetence of the victim, and more.
Probation Sentence: A probation sentence is a period of supervised release, as opposed to a prison sentence. Probation sentences are allowed in PC 287(g) cases, but only in “special” circumstances.
What is considered to be “special” circumstances in any oral copulation upon an incompetent person case includes, but is not limited to, the defendant’s criminal history, the level of sophistication of the offense, the victim’s desire to prosecute the case, the relationship between the victim and the defendant, the likelihood of defendant’s repeat offense, the amenability of the defendant to obey the terms of probation, and more.
Prison-Presumptive Felony: An incarceration related to a convicted for penal code 287(g) is served in a California state prison, as opposed to a local county jail. Additionally, no part of the defendant’s prison sentence may be served alternatively on work release or house arrest, and no part of the defendant’s prison sentence may be suspended (aka “Joint-Suspension” Sentence).
Sex Offender Registration: A conviction for oral copulation upon an incompetent person will require the defendant to register as sex offender with the Department of Justice (DOJ). The length of registration as a sex offender in PC 287(g) cases depends on whether the defendant is classified as a tier two (20-year registration), or a tier three (lifetime registration).
Note: Tier three sex offender registration is required in PC 287(g) cases where the defendant’s risk of repeat of offense is “high” as determined on a standardized test meant to gauge such risk (SARATSO & STATIC-99 risk evaluation examinations). For more information, see Petition to Terminate Sex Offender Registration (PC 290.5), California’s Sex Offender Tier Level Registration (PC 290(a)-(d)), & Sex Offender Registration Requirements (PC 290).
Crime Involving Moral Turpitude: Oral copulation upon an incompetent person charged under penal code 287(g) is a crime involving moral turpitude, or CIMT. A crime involving moral turpitude is any offense that is morally wrong or involves deceit.
A CIMT conviction carries additional direct and indirect negative consequences, including possible deportation for non-US citizens, revocation of a professional license for licensed professionals (i.e., doctors, dentists, lawyers, etc.), discharge from the armed services for military personnel.
Three Strikes Law: Oral copulation on an incompetent victim is not a serious or violent crime, at least as those terms are defined in the California penal code at PC 1192.7 and 667.5, respectively. However, if the defendant has already suffered two prior strike convictions under California’s Three Strikes Law, then a conviction of PC 287(g) may be considered a third strike, which subjects the defendant to a possible life sentence.
More Punishments: In addition to the punishment and penalties listed above, if found guilty of oral copulation on an incompetent person charged under PC 287(g), the defendant may suffer criminal protective orders in favor of the oral copulation victim, monetary restitution for any financial loss to the victim (therapist bills, medical bills, etc.), loss of firearm rights, civil lawsuits, loss of scholarship opportunities, harsh and lengthy parole terms and conditions, and more.
PC 287(g) Common Defenses
Common defenses related to oral copulation against an incompetent person charged under PC 287(g) include lack of corroborating evidence, insufficient evidence to prove defendant’s guilty beyond a reasonable doubt, reasonable mistake of fact as to the incompetent person’s status as an incompetent person, illegal search and seizure of evidence, coerced or non-Mirandized confession, and more.
Statute of Limitations Defense: The statute of limitations is the period in which the district attorney must bring criminal charges against the defendant. Failure of the district attorney to comply with the statute of limitations in any case can lead to dismissal of the criminal charges. The statute of limitations in oral copulation cases charged under PC 287(g) cases do not begin until law enforcement or mandated reporters learn of the offense. For more information, see Statute of Limitations in CA Sex Crimes.
Consent Defense: The defense of consent does not apply to oral copulation upon an incompetent person case. The reason for this is that an incompetent person is legally incapable of granting consent (See PC 287(g) Law Above). However, if the “victim” is deemed capable of granting consent, either by the court, or by the jury, then consent to oral copulation is still a factual issue to be decided. In other words, a person deemed capable of granting consent does not mean that person. in fact, granted consent to oral copulation.
If you or a loved one is charged with a violation of California penal code 287(g), or oral copulation upon an incompetent victim, contact our sex crimes criminal defense attorneys today for a free consultation. Our highly experienced team of award-winning and successful criminal defense trial attorneys have handled hundreds of misdemeanor and felony sex crimes in the Inland Empire, and we can help you too. Call today!