## Facts

- Daniel Kayton Boro, using the name “Dr. Stevens,” telephoned Ms. R., a hotel clerk, and claimed her blood tests showed a dangerous, infectious, possibly fatal disease.
- He asserted she faced serious consequences, including potential civil liability, and pressured her with urgency and fear.
- He offered two “treatments”: (1) an expensive, painful surgical procedure with lengthy hospitalization, or (2) sexual intercourse with an “anonymous donor” allegedly injected with a curative serum, for a substantial fee.
- After Ms. R. indicated she lacked money, the caller suggested an arrangement and directed her to obtain a hotel room, stating the “donor” would arrive.
- Boro appeared as the supposed donor and had sexual intercourse with Ms. R., who believed the act was medically necessary to avoid death.
- Ms. R. later reported the incident; records connected the scheme to Boro.
- The evidence indicated Ms. R. understood she was engaging in sexual intercourse; her mistake concerned the reason for the act and its supposed medical purpose.

## Issues

1. Whether a person is “unconscious of the nature of the act” under California Penal Code § 261(4) when she knows she is having sexual intercourse but agrees due to fraudulent misrepresentations about a collateral purpose (medical necessity).
2. Whether the distinction between fraud in the factum and fraud in the inducement limits rape liability under § 261(4) on these facts.
3. Whether California Penal Code § 261.6’s definition of consent changes the § 261(4) analysis for consent obtained by deceit.

## Decision

- The Court of Appeal granted a writ of prohibition restraining further prosecution of the rape count charged under Penal Code § 261(4).
- The court held the evidence did not show Ms. R. was “unconscious of the nature of the act” because she knew the act was sexual intercourse.
- The court characterized the deception as fraud in the inducement, which does not negate consent for purposes of rape under § 261(4).
- The court concluded § 261.6 did not expand § 261(4) to include intercourse obtained by inducement-based fraud.
- Other non-rape charges were not affected by the writ.

## Legal Principles

- Under Penal Code § 261(4), “unconscious of the nature of the act” requires lack of awareness that the act is sexual intercourse (or comparable lack of understanding of the act’s sexual character).
- Fraud in the factum (deception as to what the act is) can negate consent and support rape liability where the statute requires lack of awareness of the act’s nature.
- Fraud in the inducement (deception as to why the victim should engage in an act known to be intercourse) does not vitiate consent for rape under § 261(4).
- Penal Code § 261.6’s requirement of “positive cooperation” pursuant to “free will” does not, by itself, convert inducement-based deceit into rape under § 261(4); expanding liability for intercourse obtained by deceit is a legislative judgment.

## Conclusion

The court barred prosecution for rape under Penal Code § 261(4) because the victim, though seriously deceived about the medical reasons for sex, understood she was engaging in sexual intercourse; that deception was fraud in the inducement, not fraud in the factum, and therefore did not satisfy the statutory “unconscious of the nature of the act” element.


Boro v. Superior Court, 163 Cal. App. 3d 1224 (Cal. Ct. App. 1985)