Boro v. Superior Court

Citations: 163 Cal. App. 3d 1224; 210 Cal. Rptr. 122; 1985 Cal. App. LEXIS 1576Docket: A027892

Court: California Court of Appeal; January 25, 1985; California; State Appellate Court

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

Petitioner Daniel Boro seeks a writ of prohibition to halt the prosecution of a rape charge against him under Penal Code section 261, subdivision (4), which involves sexual intercourse with a person who is unconscious of the nature of the act. Boro argues that evidence from the preliminary hearing demonstrates that the victim, Ms. R., was aware of the act's nature. Conversely, the Attorney General contends that Ms. R.'s consent was based on a fraudulent belief induced by Boro, who posed as a doctor and claimed she had a life-threatening disease that could only be treated through sexual intercourse with a donor. 

On March 30, 1984, Ms. R. received a call from "Dr. Stevens," who falsely informed her of a dangerous disease, presenting her with two treatment options: a costly surgical procedure or sexual intercourse with an anonymous donor, which she was led to believe was necessary for her survival. After discussions with her employer and withdrawing funds for the supposed treatment, Ms. R. agreed to the sexual act, believing it was her only choice to save her life. The defendant, posing as the donor, subsequently engaged in sexual intercourse with her, further reinforcing her belief that her life was at stake.

Petitioner was arrested at a hotel room after a report from Ms. R.'s supervisor. Identified as "Dr. Stevens" in a police voice lineup, petitioner faces five charges: Count I (rape by force or fear), Count II (rape of an unconscious person), Count III (procuring a female for illicit acts through fraud), Count IV (attempted grand theft), and Count V (burglary with intent to commit theft). A motion to dismiss was granted for counts I and III, but petitioner challenges the denial of the motion for Count II, arguing that Ms. R. was aware of the act, which negates the charge. The prosecution asserts that Ms. R. was misled to believe the act was medical treatment, thus rendering her unconscious of its true nature. Legal precedent indicates that a victim does not need to be completely unconscious for Count II to apply; instead, if deception leads to misunderstanding the nature of the act (fraud in the factum), consent is invalidated. The case of People v. Minkowski illustrates this, where victims believed they were receiving medical treatment rather than engaging in sexual intercourse. This distinction is crucial, as consent based on a misunderstanding of the act itself (not merely its context) is not legally recognized. The excerpt also references other instances of fraud leading to non-consensual acts, such as impersonating a spouse.

Disagreement exists among courts regarding whether certain acts constitute rape, focusing on the interpretation of consent. Some courts view acts involving deception as fraud in the inducement, leading to the conclusion that consent to sexual intercourse negates the possibility of rape. Conversely, other courts argue these acts are rape due to fraud in the factum, as the victim consents to a legitimate act of marital intercourse, not realizing that what occurs is adulterous. In California, the statute aligns with the latter view, stating that fraud in factum invalidates consent. The law defines rape as nonspousal sexual intercourse where the victim is unaware of the act's nature. Previous cases demonstrate that California courts recognize the principle that fraud in the inducement does not invalidate consent. Recent legislative changes, particularly Penal Code section 261.6, redefine "consent" in sexual offense prosecutions, emphasizing that consent must involve free will and knowledge of the act. This section appears to have been introduced in response to earlier case law to clarify the definition of consent in legal contexts.

Section 261.6 was enacted as part of Chapter 1111 of the 1982 Statutes, which revised various sex crime laws and established sexual battery as a crime. The Attorney General's interpretation of section 261.6 is criticized for potentially rendering section 261, subdivision (5) meaningless. The court expresses reluctance to adopt interpretations that make existing statutory provisions superfluous. The case referenced, People v. Howard, involved a victim lacking the capacity to understand the nature of the act, contrasting with the current case where the victim, despite mental retardation, clearly understood the nature of the act due to fear of disease and death. Consequently, the court concludes that the crimes committed were distinct from those defined under section 261, subdivision (4). A peremptory writ of prohibition is issued to prevent further action on count II, with the stay of trial remaining in effect until the decision is finalized. 

In dissent, Judge Holmdahl acknowledges the limited legislative history surrounding section 261.6 but contends that it should apply to the current case since it involves a prosecution under section 261 with consent at issue. Section 261.6 aims to clarify that "consent" must be free, voluntary, and knowledgeable, emphasizing that consent involves positive cooperation in the act or transaction based on free will.

Courts must interpret statutes using the ordinary meaning of the language used in those statutes. The term "positive" in "positive cooperation" implies an absolute, unconditional nature, while "free will" denotes an unconstrained choice. The definitions of "freely" and "voluntarily" further emphasize actions taken without compulsion or reluctance. The phrases "act or attitude" and "act or transaction" are interpreted as extending beyond mere knowledge or intention of engaging in sexual intercourse. The legislature intended to limit "consent" to cases of true consent, free from substantial fraud or deceit, despite not explicitly repealing the legal distinctions between "fraud in the factum" and "fraud in the inducement." The court found sufficient grounds to prosecute the petitioner under section 261, subdivision 4, and denied the writ. A petition for rehearing was denied on February 21, 1985, with a dissenting opinion favoring the petition. The Supreme Court declined to hear the case on April 4, 1985. The document notes that the petitioner did not contest certain charges and references specific sections of the California Penal Code, including the implications of consent and the legislature's stance on fraudulent inducements to consent. The court has also ordered the separation of related charges in an ongoing fraud case. No published decisions have yet addressed section 261.6, and the term "consent" is primarily associated with the victim's state of mind across the relevant statutes.