Boro v. Superior Court
163 Cal.App.3d 1224 (1985)
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Rule of Law:
For the purpose of rape under California Penal Code § 261(4), a victim is not "unconscious of the nature of the act" when consent to sexual intercourse is obtained through deception about a collateral matter (fraud in the inducement), such as a false claim that the act is a medical treatment. The statute applies only when the victim is deceived about the physical nature of the act itself (fraud in the factum).
Facts:
- Daniel Boro, impersonating a 'Dr. Stevens', called Ms. R. and falsely informed her that she had contracted a dangerous and potentially fatal disease.
- Boro presented two treatment options: a painful, $9,000 surgery or sexual intercourse with an anonymous 'donor' who was supposedly injected with a curative serum, for a cost of $4,500.
- Believing the intercourse was a necessary medical treatment to save her life, Ms. R. agreed to the second option.
- Ms. R. withdrew $1,000 as a down payment and checked into a hotel room as instructed by Boro.
- Boro arrived at the hotel room, posing as the anonymous donor.
- Boro then had sexual intercourse with Ms. R., who engaged in the act solely because she believed it was a medical necessity to prevent her death.
Procedural Posture:
- Daniel Boro was charged by information in San Mateo County Superior Court with multiple crimes, including rape under Penal Code § 261(4) (Count II).
- Boro filed a motion to set aside the information pursuant to Penal Code § 995.
- The trial court granted the motion as to counts I and III, but denied the motion as to Count II.
- Boro petitioned the Court of Appeal for a writ of prohibition to restrain the trial court from proceeding with the prosecution of Count II.
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Issue:
Does fraudulently inducing a person to have sexual intercourse by convincing them it is a necessary life-saving medical treatment constitute rape under California Penal Code section 261, subdivision (4), which requires the victim to be 'unconscious of the nature of the act'?
Opinions:
Majority - Newsom, J.
No. Fraudulently inducing consent to sexual intercourse by misrepresenting it as a medical treatment does not render the victim 'unconscious of the nature of the act' under Penal Code section 261(4). This case involves fraud in the inducement, not fraud in the factum. The court reasoned that there is a critical distinction between deception about the fundamental nature of the act itself (fraud in the factum) and deception about a collateral matter that motivates consent (fraud in the inducement). Citing precedent like People v. Minkowski, where victims believed a doctor was inserting a medical instrument rather than his penis, the court highlighted that § 261(4) applies only to fraud in the factum. Here, Ms. R. was fully aware she was engaging in sexual intercourse; she was deceived only as to the reason for the act. The legislature specifically criminalized other forms of inducement, such as impersonating a spouse, indicating that if it intended to criminalize this type of fraud as rape, it would have done so explicitly.
Dissenting - Holmdahl, J.
Yes. The defendant's conduct should be prosecutable under Penal Code section 261(4). The dissent argued that the majority's strict adherence to the common law distinction between fraud in the factum and fraud in the inducement ignores the plain language of Penal Code section 261.6, which defines consent as 'positive cooperation...pursuant to an exercise of free will' with 'knowledge of the nature of the act or transaction involved.' The dissent contended that the phrase 'act or transaction' means more than just knowledge of the physical mechanics of sex. Because Ms. R. was deceived about the entire nature of the 'transaction'—believing it was a medical cure rather than a simple sex act—her consent was not truly free, voluntary, or knowledgeable as required by statute, and the fraud was substantial enough to vitiate her consent.
Analysis:
This case solidifies the narrow application of California's rape statute concerning victims who are 'unconscious of the nature of the act,' limiting it strictly to cases of fraud in the factum. The decision reaffirms that deceptions regarding the purpose, consequences, or character of the perpetrator do not negate consent under this specific subdivision, even when the fraud is extreme. By refusing to expand the statute's scope, the court places the burden on the legislature to criminalize new forms of fraudulently obtained sex as rape. This ruling highlights a significant gap in the law where egregious deception leading to sexual intercourse may not be legally considered rape, prompting future legislative debates and potential amendments to sexual assault statutes.
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