Boro v. Superior Court
Citation and Court
163 Cal. App. 3d 1224 (California Court of Appeal 1985)
Facts
Boro posed as a doctor and told the victim she had a serious illness that required immediate sexual intercourse with him as “treatment.” The victim consented to the act believing it was a medical procedure. Boro was charged with rape by fraud.
Issue
Whether consent obtained through fraud about the nature of the act (fraud in the factum) versus fraud about a collateral matter (fraud in the inducement) negates consent to intercourse for purposes of rape law.
Holding
Boro’s conduct constituted fraud in the factum — the victim was deceived about the very nature of the act she was consenting to — and therefore the consent was legally invalid and the act was rape.
Rule / Doctrine
The common law distinguishes two types of fraud in the context of rape: (1) fraud in the factum — deception as to the nature of the act itself, which negates consent (e.g., victim thinks it is a medical procedure); and (2) fraud in the inducement — deception about collateral circumstances that leads the victim to consent to the act knowing what it is (which historically did not negate consent and thus was not rape). Fraud in the factum voids consent; fraud in the inducement traditionally does not.
Significance
A leading case on the fraud-in-the-factum versus fraud-in-the-inducement distinction in rape law. Raises important questions about the adequacy of consent doctrine and legislative reform. Many modern rape statutes have broadened the circumstances under which fraudulently obtained consent is invalid.