California Penal Code 288a was the state’s oral copulation statute, criminalizing the act when it involved a minor, a person who could not consent, or the use of force. The law still exists, but it was renumbered to Penal Code Section 287 effective January 1, 2019; the content did not change.1California Legislative Information. California Penal Code Title 9, Chapter 5 Depending on the circumstances, a conviction can mean anywhere from up to one year in county jail to a life sentence, and nearly every conviction triggers mandatory sex offender registration.
The Renumbering From 288a to 287
Senate Bill 1494, signed in 2018, moved the former Section 288a to Section 287 as part of a cleanup of the Penal Code. The substance is identical. Police reports, older court filings, and plenty of legal commentary still refer to “288a,” so you will see both numbers in use. Anything written below about Section 287 applies equally to former Section 288a.
What the Statute Covers
Section 287 defines oral copulation as contact between one person’s mouth and another person’s sexual organ or anus.2California Legislative Information. California Code PEN 287 Sodomy is a separate crime under Penal Code Section 286 and carries its own penalty structure; the two are often confused but are not the same offense.
Oral copulation between consenting adults is not a crime. The statute reaches the act only when a minor is involved, when the victim is mentally incapacitated or unconscious, or when force, duress, or fear is used. Which subdivision applies decides how severely the case is punished.
Penalties When the Victim Is a Minor
The statute treats offenses against minors on a sliding scale that gets harsher as the victim gets younger and the age gap widens.
- Victim under 18: chargeable as either a felony with state prison time or a misdemeanor with up to one year in county jail. The prosecutor decides based on the facts.2California Legislative Information. California Code PEN 287
- Perpetrator over 21 and victim under 16: always a felony, with no misdemeanor option.
- Victim under 14 with an age gap of more than 10 years: a felony punishable by three, six, or eight years in state prison.
These charges apply whether or not force was used. If force was involved, the penalties below apply instead.
Penalties for Forcible Oral Copulation
When the act is committed through force, violence, duress, menace, or fear of immediate bodily injury, the sentence turns on the victim’s age at the time of the offense.
- Adult victim: three, six, or eight years in state prison.2California Legislative Information. California Code PEN 287
- Minor aged 14 or older: six, eight, or ten years in state prison.
- Victim under 14: eight, ten, or twelve years in state prison.
The statute separately covers threats of future retaliation, where the perpetrator does not use physical force but threatens to harm the victim later. That offense carries three, six, or eight years.
Acting in Concert
Subdivision (d) creates a more severe offense when two or more people act together to commit forcible oral copulation, whether each personally commits the act or aids another in doing so. The sentence rises to five, seven, or nine years in state prison. If the victim is under 14, the range becomes ten, twelve, or fourteen years.
Unconscious, Intoxicated, or Disabled Victims
Section 287 also reaches cases where the victim could not resist. Subdivision (f) covers oral copulation on a person who is “unconscious of the nature of the act,” defined broadly to include someone who was asleep, unaware the act was happening, or deceived about what was occurring. The sentence is three, six, or eight years in state prison.
Subdivision (i) covers victims too intoxicated or drugged to resist. The perpetrator must have known or reasonably should have known about the victim’s condition. The penalty is also three, six, or eight years. The perpetrator does not need to have caused the intoxication; knowingly taking advantage of it is enough.
A parallel provision covers oral copulation with a person whose mental disorder or developmental disability prevents them from understanding the act or legally consenting, where the perpetrator knew or should have known about the condition. That offense carries three, six, or eight years as well.
Three Strikes Consequences
Forcible oral copulation under subdivisions (c) or (d) qualifies as both a “violent felony” under Penal Code 667.5(c) and a “serious felony” under Penal Code 1192.7(c).3California Legislative Information. California Code PEN 667.54California Department of Corrections and Rehabilitation. Definition of Serious Felony Offenses That dual classification makes a conviction a “strike” under California’s Three Strikes Law. A defendant with one prior strike faces double the normal sentence; a defendant with two prior strikes faces a mandatory 25 years to life.
Not every Section 287 violation is a strike. Offenses based solely on an age gap, without force or acting in concert, may be serious felonies without carrying the violent felony designation.
Sex Offender Registration
A conviction under Section 287 triggers mandatory sex offender registration under Penal Code Section 290. The registration statute specifically lists Section 287 and former Section 288a among qualifying offenses.5California Legislative Information. California Code PEN 290 Registration is a separate consequence from prison time and continues after release.
California uses a three-tier system that sets how long registration lasts:
- Tier 1 (10 years): misdemeanor convictions and felonies not classified as serious or violent. A wobbler under subdivision (b)(1) charged as a misdemeanor can fall here.
- Tier 2 (20 years): certain felony convictions that qualify as serious or violent, including specific subdivisions of Section 287.
- Tier 3 (lifetime): the most serious offenses, including convictions carrying a life sentence under Penal Code 667.61, kidnapping with intent to commit a sex offense, and cases where the offender scores well above average on the state’s risk assessment. Repeat sex offenders and sexually violent predators are also Tier 3.
Registrants must check in with local law enforcement annually and report any address change within five working days.
How Long Prosecutors Have to File
The filing deadline depends on the victim’s age at the time of the offense. For felony oral copulation against a victim who was under 18, Penal Code 801.1 extends the statute of limitations to the victim’s 40th birthday. A crime against a 10-year-old can therefore be charged up to 30 years later. The extended window applies to offenses committed on or after January 1, 2015, or offenses whose prior limitations period had not yet expired on that date.
For offenses against adult victims, the general felony statute of limitations applies.
Defenses to a Section 287 Charge
Which defense fits depends on the subdivision charged and the facts of the case.
Consent is the most common defense when the alleged victim is an adult. Forcible oral copulation requires the act to be committed against the victim’s will, so proof of consent defeats the charge. Consent is not available as a defense when the victim is under 18, mentally incapacitated, or was unconscious or intoxicated. The law treats those individuals as legally unable to consent regardless of what they said or did at the time.
Lack of knowledge applies to the subdivisions that require the perpetrator to have known or reasonably should have known about the victim’s condition. A defendant who genuinely did not realize the victim was asleep, unconscious, or incapacitated has a potential defense, though courts measure the claim against what a reasonable person would have noticed.
False accusation and misidentification come up often in these cases because the evidence is frequently limited to two accounts with no physical corroboration. Defense work tends to focus on inconsistencies in the accuser’s statements, motives to fabricate, and forensic evidence that cuts against the allegations.