Boro v. Superior Court

California Court of Appeal · 1985 · Criminal Law

163 Cal. App. 3d 1224 (1985)

Updated August 1, 2026

Criminal Lawrapefraud in the inducementPenal Code section 261(4)unconscious of the nature of the actfraud in the factumconsentsexual intercourse

Facts

A caller identifying himself as a doctor falsely told Ms. R. that she had a dangerous, possibly fatal disease and that one treatment option required sexual intercourse with an anonymous donor injected with curative serum. Believing this was the only way to save her life, Ms. R. followed the caller's instructions, withdrew money, went to a hotel, and met petitioner, who then had sexual intercourse with her. At the time of penetration, Ms. R. believed she would die unless she consented, but her testimony showed she understood she was engaging in sexual intercourse. Petitioner was charged with several offenses, and only the denial of dismissal of the section 261, subdivision (4) count was challenged here.

Issue

Whether a woman who knowingly agrees to sexual intercourse because the defendant fraudulently tells her the intercourse is necessary medical treatment to save her life is "unconscious of the nature of the act" within Penal Code section 261, subdivision (4).

Rule

Under Penal Code section 261, subdivision (4), a victim is not "unconscious of the nature of the act" when she understands that the act is sexual intercourse, even if her agreement was procured by fraud relating to a collateral reason for submitting. Deception that changes the very character of the act is fraud in the factum and may negate consent, but deception that merely induces agreement by false promises or false reasons is fraud in the inducement and does not fall within section 261, subdivision (4).

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Sacramento, Lena Ortiz received calls from a man claiming to be a fertility specialist from Valley Crest Clinic, a fictional medical practice. He told her that unless she immediately had sexual intercourse with a designated donor, she would become permanently infertile; Lena agreed and, when the man arrived, she knowingly had intercourse because she believed it was medically necessary.

If the state charges the man with rape on the theory that Lena was unconscious of the nature of the act, what is the strongest argument for dismissal?

Explanation. Under the majority rule, section 261, subdivision (4) turns on whether the victim understood the nature of the act itself. If the victim knows the act is sexual intercourse but agrees because of false statements about benefits, necessity, or consequences, the deception is fraud in the inducement and does not make the victim unconscious of the nature of the act.