Information on the crime of oral copulation by threat of arrest or deportation is found at California penal code § 287(k). This overview of PC 287(k) covers related penalties and common defenses to the crime of oral copulation by threat of deportation. For further information, contact our sex crimes criminal defense attorneys today for a free consultation.
PC 287(k) Law
Per PC 287(k), any person who commits an act of oral copulation, where the act is accomplished against the victim’s will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim, or another person, and the victim has a reasonable belief that the perpetrator is a public official, is guilty of oral copulation by threat of arrest or deportation (PC 287(k) Abbrev.).
Oral Copulation Defined: 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” is this sense means to sexually connect, such as to connect the mouth to penis (fellatio), or to connect the mouth to vagina (cunnilingus). A common slang term for oral copulation includes “oral sex.”
Note: As used in PC 287(k), 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 (Calcrim Jury Instruction 1015).
Per Calcrim 1015, evidence of penetration of the vagina with the defendant’s tongue is not required to charge a violation of PC 287(k).
Example: Deputy Sanchez informs Maria that he (Deputy Sanchez) will deport Maria’s mother from the United State unless Maria performs oral copulation on him (Deputy Sanchez). Result: Deputy Sanchez may be charged with oral copulation by threat of deportation (PC 287(k).
Important: In the example above, it does not matter if “Deputy” Sanchez is not a real law enforcement officer. It only matters that Maria reasonably believes that Sanchez is a real law enforcement officer for PC 287(k) charges to apply against Sanchez.
PC 287(k) Punishment
The crime of oral copulation by threat of arrest or deportation is charged as a felony (PC 287(k). If found guilty of PC 287(k), the defendant may face up to three (3), six (6), or eight (8) years in a California state prison.
Note: Whether the criminal court judge orders three (3), six (6), or eight (8) years of prison after a PC 287(k) conviction depends on many factors, including the presence of any mitigating or aggravating factors in the case, such as the level of sophistication incorporated by the defendant when he or she committed the offense, the defendant’s criminal history, the harm caused to the victim, the victim’s desire for prosecution, the terms of any plea bargain between the district attorney and defense attorney, and more.
Probation Sentence: For purposes of PC 287(k), a probation sentence is a period of monitoring the defendant by a felony probation officer, as opposed to incarceration in a state prison. A probation sentence is allowed after a conviction for oral copulation by threat or deportation, but only if the defendant finds “unusual” circumstances related to the case that justify a probation sentence (See Factors Considered for Probation Sentence).
Factors Considered for Probation: As stated, in PC 287(k) cases, the court will only grant probation where “unusual” circumstances related to the case justify a probation sentence and a probation sentence would be in the interest of justice, as opposed to a prison sentence. These “unusual” factors include, but are not limited to, the following:
The defendant participated in the crime under circumstances of great provocation, coercion, or duress not amounting to a defense, and the defendant has no recent record of committing crimes of violence (ROC 4.413(c)(2)(A));
The crime was committed because of a mental condition not amounting to a defense, and there is a high likelihood that the defendant would respond favorably to mental health care and treatment that would be required as a condition of probation (ROC 4.413(c)(2)(B)); and
The defendant is youthful or and has no significant record of prior criminal offenses (ROC 4.413(c)(2)(C)).
State Prison Presumptive: If the defendant is not granted a probation sentence after a penal code 287(k) conviction, then he or she must serve his or her incarceration in a California state prison, as opposed to a local county jail. Additionally, no part of a prison sentence related to a conviction for oral copulation by threat of arrest or deportation may be “suspended,” or split (i.e., incarceration served alternatively on work release or house arrest).
Note: If the defendant is granted a probation sentence after a PC 287(k) conviction, then the judge may order a period of incarceration in the county jail as a “term of probation.” However, incarceration related to a probation sentence is generally much shorter than the prison sentence that could have been imposed had the defendant not been granted probation.
Good Conduct Credits: A prison sentence related to PC 287(k) may be reduced by up to fifty percent (50%) if the defendant serves his or her prison sentence with “good behavior.” For example, if the prisoner is ordered to serve a three-year prison sentence after a PC 287(k) conviction (low-term prison sentence), that prison sentence may be reduced to eighteen (18) months if the prisoner conducts himself or herself with good behavior for the first eighteen (18) months (PC 4019 & PC 2933).
Crime of Moral Turpitude: The crime of oral copulation by threat of arrest or deportation is a crime involving moral turpitude. A crime involving moral turpitude is any offense that involves dishonesty or is otherwise morally abhorrent. Crimes involving moral turpitude, including PC 287(k) crimes, can lead to adverse consequences with immigration status (deportation of non-US citizens), licensed professionals (denial or revocation of license), and military status (denial of entry or discharge from military).
Sex Offender Registration: PC 287(k) is a crime that requires sex offender registration with the DOJ upon criminal conviction (or upon release from prison). Sex offender registration for oral copulation by threat of arrest or deportation is classified as either a Tier-2 (20 Year Registration), or Tier-3 (Lifetime Registration) depending on several factors.
Other Penalties: Additional penalties for PC 287(k) convictions include court security fees and fines, restitution orders, criminal protective orders (CPO), civil lawsuits, loss of firearm rights, loss of family law rights, loss of scholarship opportunities, lengthy parole terms, and more.
PC 287(k) Common Defenses
Common defenses used in penal code 287(k) cases include lack of reasonable belief the defendant was a “public official,” insufficient evidence that oral copulation took place, illegal search and search and seizure of evidence that renders that evidence inadmissible, failure to Mirandize the defendant before confession, statute of limitations, and more.
Note: The fact that the defendant is not a public official does not defeat PC 287(k) charges, so long as the oral copulation victim reasonably believed that the defendant was a public official when he or she threatened arrest or deportation.
For further information related to PC 287(k), oral copulation by threat of arrest or deportation, contact our sex crimes criminal defense attorneys today for a free consultation. Our successful team of award-winning criminal defense attorneys are passionate and highly skilled at defending all misdemeanor and felony sex crimes, including oral copulation crimes, and we can help you too. Call today!