Criminal Law, Pages 386–388

Boro v. Superior Court

Court of Appeals of California, First District, 1985
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Defendant, claiming to be a doctor, called the victim at her work and told her that she had a fatal disease that could only be treated by a $9,000 painful surgical procedure or by paying $4,500 to have sex with an anonymous donor who was injected with a serum. The victim could not afford either, but she talked defendant down to a $1,000 down payment and agreed to the "procedure." The victim discussed it with her supervisor, paid defendant $1,000, and had sex with him, believing it to be the only way to be cured.


Did defendant's fraud constitute rape?


LexisNexis IconWestLaw LogoGoogle Scholar LogoPage 388

"[I]f deception causes a misunderstanding as to the fact itself (fraud in the factum) there is no legally-recognized consent because what happened is not that for which consent was given; whereas consent induced by fraud is as effective as any other consent, so far as direct and immediate legal consequences are concerned, if the deception relates not to the thing done but merely to some collateral matter (fraud in the inducement)."


Here, it was clear that the victim precisely understood the "nature of the act," but agreed to it anyway because of a fear of death stemming from defendant's fraudulent inducement.


No, defendant's fraud did not constitute rape.

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