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 with him.
    • 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 with rape.
    • 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 accused."
      • 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 sex.
      • 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 professional purpose."