In Boro v. Superior Court, 163 Cal. App. 3d 1224, a California Court of Appeal ruled that a man who tricked a woman into sexual intercourse by posing as a doctor and telling her the act was the only cure for a fatal illness could not be prosecuted for rape under the statute charged. The court found his lies were fraud in the inducement, not fraud in the factum, and the victim therefore was not “unconscious of the nature of the act” as Penal Code section 261 required at the time.1Justia Law. Boro v. Superior Court, 163 Cal. App. 3d 1224 – Section: Opinion
What the Defendant Did
The defendant contacted the victim and identified himself as a medical professional. He told her a recent checkup had revealed a fatal blood disorder. According to him, the only effective treatment was a biological exchange through sexual intercourse with a donor who carried rare antibodies. Believing she would otherwise die, she met him at a hotel and went through with the act as a medical procedure.
Fraud in the Inducement vs. Fraud in the Factum
The court’s ruling turned on a distinction the criminal law draws between two kinds of deception.
Fraud in the factum applies when the victim is deceived about the physical act itself. The classic illustration is a patient told she is receiving a medical examination when intercourse is in fact taking place. Because she never understood what was physically happening, the law treats her consent as no consent at all.1Justia Law. Boro v. Superior Court, 163 Cal. App. 3d 1224 – Section: Opinion
Fraud in the inducement is different. The victim knows what the physical act is but is lied to about a collateral matter, usually the reason for doing it. Consent to the act exists; the motive for giving it was manufactured by the deceiver.1Justia Law. Boro v. Superior Court, 163 Cal. App. 3d 1224 – Section: Opinion
The court placed Boro’s conduct in the second category. The victim understood she was having sexual intercourse. What she was mistaken about was why. That mistake concerned her motive, not the nature of the act, and under the court’s reading it did not vitiate consent for purposes of the rape count charged.1Justia Law. Boro v. Superior Court, 163 Cal. App. 3d 1224 – Section: Opinion
Why Penal Code Section 261 Did Not Reach the Conduct
At the time of the case, California Penal Code section 261 defined rape, in the provision at issue, as sexual intercourse with a non-spouse where the victim was unconscious of the nature of the act. The statute addressed fraud in narrow, specific circumstances, including where a victim believed the perpetrator was her spouse, but it contained no general provision covering medical deception.1Justia Law. Boro v. Superior Court, 163 Cal. App. 3d 1224 – Section: Opinion
Because the victim knew she was consenting to intercourse, she was not unconscious of the nature of the act within the statute’s meaning. The court ordered that specific rape count dismissed, describing the scheme as cruel and fraudulent while holding it did not satisfy the statutory elements.1Justia Law. Boro v. Superior Court, 163 Cal. App. 3d 1224 – Section: Opinion
What the Ruling Did Not Do
The decision addressed one rape count and the specific statutory language governing it. The court noted that the same scheme involved other types of criminal offenses, and its ruling did not clear the defendant of those.1Justia Law. Boro v. Superior Court, 163 Cal. App. 3d 1224 – Section: Opinion Read narrowly, Boro stands for the point that under the statute as it then read, deceiving a person about why to have sex was not the same, in the eyes of that particular rape provision, as deceiving her about what sex was.