Performing oral sex on a person who is too intoxicated to give valid consent, or effectively resist the sexual contact, is a crime in California (PC 287(i)).
For purposes of California criminal law, oral sex is called “oral copulation.” This article covers the law, punishments, and defenses related to California penal code § 287(i) [Oral Copulation on Intoxicated Victim].
Note: Oral copulation is the act of copulating the mouth of one person with the sexual organ or anus of another person (PC 287(a)). Medical terms for oral copulation include fellatio (mouth to penis), or cunnilingus (mouth to vagina). Slang terms for oral copulation for oral copulation include "analingus" (mouth to anus), “blowjob,” “oral sex,” and many more.
PC 287(i) Law
Per PC 287(i), a 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, is guilty of oral copulation on an intoxicated victim (PC 287(i) Abbrev.).
Similarly, the jury instructions related to the crime of oral copulation on an intoxicated person states “oral copulation is any contact, no matter how slight, between the mouth of one person and the sexual organ or anus of another person (Calcrim 1015).
Note: Penetration of the sexual organ is not required to prove any oral copulation of an intoxicated victim. This is true even though the language of PC 287(i) uses the term “intercourse,” when defining oral copulation.
Level of Intoxication: The law of penal code 287(i) does not use a Blood Alcohol Concentration (BAC) level to determine whether the victim is too intoxicated to consent or resist sexual touching. Rather, whether the victim is too intoxicated to voluntarily consent to sexual touching, or too intoxicated to resist a sexual touching, is determined by the facts and circumstances of the case.
Example: John, who is feeling the effects of alcohol, sneaks into a bedroom at a house party. In the bedroom, John sees Sally, who is awake, but severely intoxicated. John knows that Sally is too intoxicated to understand what is happening or grant valid consent to sexual touching. Nevertheless, John decides to perform oral copulation on Salley. Sally does not complain during the oral copulation.
Result: John may be charged with PC 287(i) and PC 243.4 (Sexual Battery). This is true even though Sally did not object to John sexual contact, because Sally was too intoxicated to validly consent or resist John. The fact that John is “feeling the effects” of alcohol himself is not a valid defense to oral copulation crimes.
PC 287(i) Punishment
Prison Sentence: Oral copulation upon an intoxicated person is charged as a felony in California. If found guilty of PC 287(i), the defendant could face up to three (3), six (6), or eight (8) years in a California state prison. A probation sentence without incarceration is not allowed in PC 287(i) cases.
Note: Whether the court imposes a three (3) years prison sentence, a six (6) year prison sentence, or a eight (8) year prison sentence depends on the presence or absence of mitigating and aggravating factors, such as the defendant’s criminal history, the harm caused to victim, the level of remorse shown by the defendant, the relationship between the defendant and the victim, the terms of any negotiated plea bargain between the district attorney and the defense attorney, the level of sophistication related to defendant’s crime, and more.
Example: After conviction for oral copulation of an intoxicated person, the court considers a “low term” prison sentence of three (3) years [“mitigated” prison sentence], a “midterm” prison sentence of six (6) years [“presumptive” prison sentence], or an eight (8) year prison sentence [“aggravated” prison sentence. The court finds that defendant took advantage of a position of trust when committing his crime. Therefore, the court decides the “aggravated” prison term of eight (8) years is most appropriate.
Probation Sentence: A probation sentence, without or without a period of incarceration as a “term of probation” is not allowed in PC 287(i) cases. This means that any conviction for oral copulation of an intoxicated person results in some prison sentence.
Also, no part of a PC 287(i) prison sentence may be “split,” or “suspended.” This means that the defendant must serve his or her full sentence in a California state prison, and no portion of that prison sentence may be served alternatively on an out-of-custody work release program (PC 1170(h) Sentencing).
Sex Offender Registration: Per penal code 290, any conviction of an oral copulation crime results in mandatory sex offender registration with the DOJ. The length of sex offender registration in PC 287(i) cases is determined by the defendant’s risk of recidivism as determined on a Static-99 report. In any event, the length of sex offender registration after a PC 287(i) conviction is no less than twenty (20) years [Tier Two].
For more information, including the requirements related to sex offender registration, see PC 290 Requirements, Petition to Terminate Sex Offender Registration, CA Tier Levels for PC 290 Registrants, and Exclusion from Sex Offender Website (PC 290.46).
Three Strikes Law: Oral copulation upon an intoxicated victim is not a serious or violent crime, at least not as those terms are defined in the California penal code at 1192.7 and 667.5, respectively.
This means that PC 287(i) is not a “strike” offense under California’s Three Strikes Sentencing Law. However, if the defendant has already suffered two prior “strike” convictions, and he or she is then convicted of PC 287(i), the PC 287(i) conviction may be considered a third “strike,” which can subject the defendant to life in prison.
Crime Involving Moral Turpitude: Oral copulation on an intoxicated person is classified as a crime involving moral turpitude, or CIMT. A CIMT is any crime that is considered morally wrongs, as opposed to only statutorily wrong. CIMT, including penal code 287(i), carry additional punishments related to immigration status (deportation of non-US citizens), military service (discharge), licensed professionals (revocation or suspension of license), and more.
Further Penalties: In addition to the punishments and penalties listed above, if found guilty of PC 287(i), the defendant could face civil lawsuits, criminal protective orders (CPO), court fines, court fees, court civil assessments, loss of family law rights, restitution orders in favor of victim, loss of voting rights, loss of firearm rights, long and harsh parole terms, and more.
PC 287(i) Common Defenses
Common defenses related to oral copulation of an intoxicated victim include evidence of false allegations, lack of sufficient evidence to prove victim could not reasonably consent or resist defendant, mistake of fact as to victim’s intoxication status, coerced confession rendered inadmissible, failure of police to read defendant’s “Miranda” Rights, statute of limitation, impeachment of victim’s version of event and/or scientific evidence, and more. For more information, see Defense Strategies in Criminal Sex Cases.
Intoxication Defense: An intoxication defense is not ordinally allowed in oral copulation against an intoxicated person. However, if the defendant’s level of intoxication is to the degree that he or she did not understand the difference between right or wrong, or the defendant was so intoxicated at the time of his offense that he did appreciate the wrongfulness of his or her conduct, then an intoxication defense may apply (Same standard as used in insanity defense cases).
Example: John and Wendy are both severely intoxicated. John’s intoxication level is the point where he does not understand the difference between right and wrong. Wendy is severely intoxicated, but not to the point where she does not understand the difference between right and wrong. Nevertheless, John and Wendy perform oral sex upon each other. Result: John might be allowed to use the intoxication defense against PC 287(i) charges, but Wendy should not be allowed to use the intoxication defense against her PC 287(i) charges.
Note: Consent defense is not a defense to PC 287(i) charges for the reasons stated. However, if the victim is deemed sufficiently sober to voluntarily consent to oral copulation, or to reasonably and safely resist oral copulation, then consent is still an issue in the case.
Example: John is charged with performing oral copulation on Sarah. Sarah claims she was too intoxicated to voluntarily consent to John’s sexual contact. The jury finds that Sarah was sufficiently sober to voluntarily consent, but also finds that Sarah did voluntarily consent to sexual contact.
Result: John’s evidence that Sarah was not intoxicated to the point of rendering her incapable of consenting to oral copulation does not save him from a conviction, but the conviction might be reduced from a PC 287(i) to a PC 287(b)(1), a much less server oral copulation crime and possible even a misdemeanor crime (See PC 287(b)(1)).
Note: In order to consent, a person must act freely and voluntarily and know the nature of the act (Calcrim 1015). Also, evidence that the defendant and the oral copulation victim were dating or married is not enough, by itself, to constitute consent (Calcrim 1015).
PC 287(i) Post-Conviction Relief
After a conviction for oral copulation upon an intoxicated person, the defendant might have several post-conviction relief options, depending on the circumstances of the case. These include withdraw of a guilty or “no contest” plea, appeal the conviction, apply for termination of sex offender registration (limitations), petition the court for a certificate of rehabilitation (limited), or motion to exclude defendant’s name from Meagan’s law sex offender website (PC 290.46).
For more information on the California crime of oral copulation of an intoxicated person, or penal code 287(i), contact our sex crimes criminal defense attorneys today for a free consultation. Our highly skilled sex crimes defense lawyers offer free consultations with award-winning trial attorneys. Our success rate is second-to-none and we can help you too. Cal today!