Citation. 163 Cal. App. 3d 1224, 210 Cal. Rptr. 122, 1985 Cal. App. 1576.
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The victim was fraudulently induced into having consensual sexual intercourse with the Defendant, Daniel Boro (Defendant). Even though the victim thought the sexual intercourse was needed to save her life, the Defendant was not guilty of rape since she knew that they were having sexual intercourse.
Synopsis of Rule of Law.
Fraud in the inducement of sexual intercourse does not vitiate consent.
Facts.
The victim received a telephone call from a person identifying himself as Dr. Stevens. Dr. Stevens told the victim that she had contracted a disease that was treatable only by a painful and expensive surgical procedure or by having sexual intercourse with a donor injected with a serum that would cure the disease. The victim consented to the sexual intercourse with the Defendant, whom she believed to be a “donor,” as it was the only choice she believed she had. The Defendant made arrangements for the victim to check into a hotel and he arrived shortly thereafter and had sexual intercourse with her.
Issue.
Is the victim “unconscious to the nature of the act” of sexual intercourse if the person consented to the act, but the consent was procured by fraud?
Held.
No. Even though the victim was deceived into having sex with the Defendant, she still consented. While this is certainly a cruel scheme, it cannot be rape.
Discussion.
Fraud in the inducement should be distinguished from fraud in the factum. Where a deception causes a misunderstanding as to the fact itself, no consent can be given, since the consent given is not for the act performed. For example, a doctor who “treats” his patients by inserting his penis in the victim’s vagina is guilty of rape since the patients consented to treatment, not intercourse. However, where, as here, the victim is simply tricked into doing something she knows to be sexual intercourse, whatever the reason, it cannot be rape.
