Boro v. Superior Court

163 Cal. App. 3d 1224, 210 Cal. Rptr. 122 (1985)



A victim need not be totally and physically unconscious in order that Cal. Penal Code § 261(4) apply.


Appellant was arrested on charges that he deceived the victim that she needed to have sexual intercourse with him in order to cure an infectious disease she had allegedly contracted. Appellant moved to dismiss the charge under Cal. Penal Code § 261(4), on the grounds that the victim was conscious of the nature of the act. The trial court denied the motion, and appellant sought a writ of prohibition. The court granted the writ.


Should the charge of rape prosper considering the victim consented to the sexual act?




The court ruled that, under the clear language of § 261(4), appellant was not guilty of this crime because the victim was aware of the nature of the act when she agreed to have intercourse with him. While the court noted that appellant deceived her into believing that intercourse was the only way she could cure her illness, the fact remained she was aware that she was agreeing to have intercourse with appellant. In so ruling, the court distinguished between other cases involving situations where the victims' mental capacity made it unlikely that they were aware they were engaging in intercourse. Moreover, the court observed that appellant's misconduct may have violated some other statute, but held it did not meet the requirements of § 261(4).

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