Boro v. Superior Court
163 Cal. App. 3d 1224, 210 Cal. Rptr. 122 (1985)
Ms. R. received a mysterious
phone call from "Dr. Stevens." Dr. Stevens informed her that
she had contracted a fatal disease. He gave her two options, go to the
hospital for a painful surgery, or have sex with an anonymous 'donor' who
had been inoculated with a vaccine.
She had no medical insurance
and couldn't afford surgery.
Believing that it was the only
choice she had, Ms. R. consented to meet the donor in a hotel, and slept
She also paid the donor
$1000 for his services.
Later, she was shocked to
learn that she didn't have a fatal disease, and that sex with anonymous
strangers in hotel rooms is not an AMA approved medical procedure, she
filed a complaint that she had been raped.
Boro was arrested and charged
Specifically, Boro was
charged with California Statute (§261(4)), rape "where a person is at the time
unconscious of the nature of the act and this is known to the
The prosecutor argued that
Ms. R. was unconscious of the nature of the act because Boro's
misrepresentation made her believe it was a medical treatment, not just
Boro argued that Ms. R.
knew the nature of her act, and
she did it voluntarily. Her motivations for doing it are not relevant.
There was no force involved,
so Boro could not be charged with the more traditional form or rape.
The Trial Court found Boro
innocent of rape.
The Trial Court found that consent induced by fraud is as valid as any other
consent, even if it makes the defendant a jerk.
Basically, under California
law at the time, as long as the person was aware that what they were
doing was sex, then they gave consent.
If Boro had tricked her
into thinking that she was not having sex, or she was having sex with
her husband, then the act would have been covered under the Statute.
But there was no law against fraud in the inducement.
Boro's audacity was his
undoing though, as he was still convicted of grand theft and burglary because he fraudulently took the $1000.
Later, the California
Legislature amended §261(4) to
state that a victim is "unconscious of the nature of the act...when
they are not aware of the essential characteristics of the act due to the
perpetrator's fraudulent representation that the sexual act served a