California Penal Code 288a: Penalties, Defenses & Section 287

California Penal Code 288a was renumbered to Penal Code Section 287 effective January 1, 2019, but the law itself did not change. It criminalizes oral copulation committed against a minor, against a person who cannot legally consent, or by force, with penalties ranging from one year in county jail to life in state prison, plus mandatory sex offender registration in nearly every case.¹

Why You Still See “288a” Everywhere

Senate Bill 1494, signed in 2018, moved the oral copulation statute from Section 288a to Section 287 and adopted gender-neutral language. The substance stayed identical. Police reports, older case files, plea paperwork, and many attorney websites still say “288a,” so both numbers refer to the same offense. If a charging document lists 288a for conduct after January 1, 2019, that is a labeling issue, not a different crime.

What the Statute Actually Prohibits

Section 287 defines oral copulation as contact between one person’s mouth and another person’s sexual organ or anus.² Sodomy is a separate crime under Penal Code Section 286 with its own penalty structure; the two are often confused but are not the same statute.

Oral copulation between consenting adults is not a crime. Section 287 reaches the conduct only when a minor is involved, when the victim cannot legally consent because of mental incapacity, unconsciousness, or intoxication, or when the act is accomplished through force, duress, or threats. Which subsection applies drives everything about the penalty.

Penalties When the Victim Is a Minor

The statute grades offenses against minors by the victim’s age and the age gap between the parties.

Victim under 18: chargeable as a felony with state prison time or as a misdemeanor with up to one year in county jail. The prosecutor decides based on the facts.²
Perpetrator over 21 and victim under 16: always a felony, no misdemeanor option.²
Victim under 14 and an age gap of more than 10 years: a felony carrying three, six, or eight years in state prison.²

These charges do not require any showing of force. Force pushes the case into a much harsher tier.

Forcible Oral Copulation

When the act is accomplished by force, violence, duress, menace, or fear of bodily injury, the sentence turns on the victim’s age.

Adult victim: three, six, or eight years in state prison.²
Minor 14 or older: six, eight, or ten years in state prison.²
Victim under 14: eight, ten, or twelve years in state prison.²

Threats of future retaliation, meaning threats to harm the victim later rather than immediate physical force, carry three, six, or eight years.²

Acting in Concert

Section 287(d) creates a separate offense when two or more people act together, whether each personally commits the act or aids another. The penalty rises to five, seven, or nine years in state prison. If the victim is under 14, the range becomes ten, twelve, or fourteen years.²

Unconscious, Intoxicated, or Disabled Victims

Subdivision (f) covers oral copulation on a victim who is “unconscious of the nature of the act.” The statute reads that broadly. It includes a victim who was asleep, unaware the act was occurring, or deceived about what was happening by fraud. Punishment is three, six, or eight years in state prison.²

Subdivision (i) reaches victims who were too intoxicated or drugged to resist. The prosecution must show the defendant knew or reasonably should have known about the victim’s condition; it does not have to show the defendant caused the intoxication. The sentence is three, six, or eight years.²

The statute also criminalizes oral copulation with a person whose mental disorder or developmental disability prevents them from understanding the act or legally consenting, where the defendant knew or reasonably should have known of that condition. That offense also carries three, six, or eight years in state prison.²

Strike Consequences and Sex Offender Registration

Forcible oral copulation under subdivisions (c) or (d) counts as both a “violent felony” under Penal Code 667.5(c) and a “serious felony” under Penal Code 1192.7(c).³⁴ Under the Three Strikes Law, a conviction with one prior strike doubles the sentence. Two prior strikes trigger a mandatory 25 years to life. Non-forcible violations, such as an age-gap offense with a minor, may still be serious felonies but do not always carry the violent felony designation.

Any conviction under Section 287 also triggers mandatory sex offender registration under Penal Code Section 290, which specifically lists both Section 287 and former Section 288a.⁵ California uses three registration tiers:

Tier 1, ten years: misdemeanor convictions and felonies not classified as serious or violent. A wobbler under subdivision (b)(1) filed as a misdemeanor can land here.⁵
Tier 2, twenty years: certain felony convictions that qualify as serious or violent, including specific subdivisions of Section 287.⁵
Tier 3, lifetime: the most serious offenses, including convictions carrying a life sentence under Penal Code 667.61, kidnapping with intent to commit a sexual offense, high scores on the state’s static risk assessment, repeat sex offenders, and sexually violent predators.⁵

Registrants must check in with local law enforcement annually and report any change of address within five working days. Federal law separately requires 21 days’ advance notice of any international travel, with destination, dates, and flight details. There is no emergency exception, and failing to give notice is its own federal crime.

How Long Prosecutors Have to File Charges

The deadline depends on the victim’s age when the offense occurred. Under Penal Code 801.1, felony oral copulation charges involving a victim who was under 18 at the time can be filed until the victim’s 40th birthday. A crime committed against a 10-year-old can be prosecuted up to 30 years later. This extended window applies to offenses committed on or after January 1, 2015, and to older offenses whose prior limitations period had not yet expired on that date. For adult victims, the general felony statute of limitations applies.

Defenses to a Section 287 Charge

Consent is the central defense when the alleged victim is an adult. Forcible oral copulation requires the act to be against the victim’s will, so evidence that the encounter was consensual defeats the charge under subdivision (c)(2). Consent is not available when the victim is under 18, mentally incapacitated, unconscious, or too intoxicated to resist. The law treats those victims as legally unable to consent regardless of what they said or did in the moment.

Lack of knowledge is a defense to the subsections that require awareness of the victim’s condition. If a defendant genuinely did not know and could not reasonably have known that the victim was asleep, unconscious, drugged, or cognitively impaired, the mental-state element is missing. Courts apply a reasonable-person standard, so the defense is narrower than it sounds.

False accusation and misidentification arise often because these cases frequently come down to two people and no independent physical evidence. Defense strategy typically focuses on inconsistencies in the accuser’s account, motive to fabricate, and any forensic evidence that contradicts the allegation.

1
California Legislative Information. California Penal Code Title 9, Chapter 5
2
California Legislative Information. California Code PEN 287
3
California Legislative Information. California Code PEN 667.5
4
California Department of Corrections and Rehabilitation. Definition of Serious Felony Offenses
5
California Legislative Information. California Code PEN 290