Caseflicks

California Court of Appeal • 1985

Boro v. Superior Court

163 Cal. App. 3d 1224 | 210 Cal. Rptr. 122 | 1985 Cal. App. LEXIS 1576

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Takeaway

In short, this case holds that California’s “unconscious of the nature of the act” rape provision does not cover intercourse knowingly undertaken because of fraudulent medical inducement; deception about the reason for sex is not the same as deception about the sexual act itself.

Background

Daniel Boro allegedly posed by telephone as “Dr. Stevens,” told Ms. R. that she had a dangerous and potentially fatal contagious disease, and falsely claimed that she could be cured only by either costly surgery or sexual intercourse with an anonymous, serum-injected donor. Believing that intercourse was necessary to save her life, Ms. R. withdrew $1,000, checked into a hotel, and had intercourse with Boro, the supposed donor. She understood that the physical act was sexual intercourse, but believed it was medically necessary treatment.

The prosecution charged Boro with rape by force or fear, rape of a person unconscious of the nature of the act under Penal Code section 261, subdivision (4), fraudulent procurement of intercourse, attempted grand theft, and burglary. The superior court granted Boro’s Penal Code section 995 motion as to the force-or-fear rape count and the fraudulent-procurement count, but declined to dismiss the section 261, subdivision (4) count. Boro petitioned for a writ of prohibition barring further prosecution of that remaining rape count.

Issues

Issue #1

Whether a person is “unconscious of the nature of the act” under Penal Code section 261, subdivision (4), when she knows she is engaging in sexual intercourse but consents because the defendant fraudulently tells her the intercourse is medically necessary to save her life.

Holding

No. A victim who understands that the act is sexual intercourse is not unconscious of its nature merely because fraud induced her to agree to it for a false medical reason.

Reasoning

Section 261, subdivision (4), by its plain language, applies when intercourse is accomplished while the victim is unconscious of the nature of the sexual act. Ms. R.’s own testimony showed that she understood precisely what act would occur. Her agreement resulted from her fear of disease and death, not from a misunderstanding that Boro would perform some nonsexual procedure.

The court distinguished fraud in the factum from fraud in the inducement. Fraud in the factum negates legally effective consent because the victim is deceived about the act itself—for example, the victims in People v. Minkowski believed that a physician was using a medical instrument rather than his penis. By contrast, fraud in the inducement involves deception about a collateral reason for agreeing to an act that the victim accurately understands. Boro’s lie concerned the supposed medical necessity and benefit of intercourse, not the physical character of intercourse itself.

California’s rape statutes demonstrated that the Legislature knew how to criminalize specified forms of fraud that vitiate consent. Section 261, subdivision (5), for example, expressly covers intercourse obtained by inducing a person to believe the perpetrator is the victim’s spouse. The absence of comparable language covering Boro’s false medical-treatment scheme weighed against expanding subdivision (4) beyond its stated terms.

People v. Howard did not support the prosecution’s position. There, the victim’s severe intellectual disability meant he did not understand the sexual act in which he participated. Nothing in this record suggested that Ms. R. lacked the mental capacity to understand sexual intercourse; rather, she understood it and acted under an extraordinarily coercive but fraudulent belief about its consequences.

The court emphasized that its ruling did not excuse the cruelty of Boro’s conduct. It held only that the conduct constituted crimes of a different order, such as the theft-related offenses still charged, rather than rape under section 261, subdivision (4).

Issue #2

Whether Penal Code section 261.6’s definition of consent converts fraudulently induced agreement to intercourse into rape under section 261, subdivision (4).

Holding

No. Section 261.6 did not expand section 261, subdivision (4) to make every consent induced by substantial fraud legally ineffective.

Reasoning

Section 261.6 defines consent, when consent is at issue in designated sexual-offense prosecutions, as positive cooperation undertaken freely and voluntarily with knowledge of the nature of the act or transaction. The limited legislative history showed that the provision was enacted as part of broader 1982 sex-crime legislation and to supply an express definition of consent, not to create a general fraud-based rape offense.

Reading section 261.6 as the People urged would effectively make the Legislature’s specific fraud provisions, especially section 261, subdivision (5), unnecessary surplusage. Courts avoid interpretations that render related statutory language redundant, particularly where the Legislature has expressly identified particular kinds of deception that invalidate consent.

The Legislature had an opportunity in 1982 to criminalize consent procured through fraud more broadly, including the gap noted in Mathews v. Superior Court, but did not clearly do so. The court therefore declined to treat section 261.6 as silently abolishing the established distinction between deception about the sexual act itself and deception that merely motivates a victim to engage in a known sexual act.

Dissents

Judge Holmdahl

Reasoning

Judge Holmdahl agreed that section 261.6 did not amend the separate offense in Penal Code section 266, but he concluded that the provision directly governed this prosecution because it expressly applies to prosecutions under section 261 in which consent is at issue. In his view, consent necessarily was at issue under section 261, subdivision (4), even though the word “consent” appears expressly only in another subdivision of the rape statute.

He read section 261.6’s language—requiring “positive cooperation,” “free will,” action that is “freely and voluntarily” taken, and knowledge of the nature of the act or transaction—as deliberately restrictive. Those terms, he reasoned, require genuinely informed and unconstrained agreement rather than mere awareness of the mechanics of sexual intercourse.

For Judge Holmdahl, Ms. R.’s knowledge that she would have intercourse did not establish legally valid consent where Boro obtained her submission through a grave and calculated lie that intercourse was necessary to prevent her death. Although section 261.6 did not expressly use the traditional labels of fraud in the factum and fraud in the inducement, he believed it limited consent to good-faith agreement untainted by substantial fraud or deceit. He would therefore have allowed the prosecution under section 261, subdivision (4), to proceed.