Boro v. Superior case brief

 

Boro v. Superior: Woman believes she has a deadly disease that could only be cured by a painful surgery ($9k) and having sex with a man for $4500. She consents to the sex b/c she can’t afford surgery and thought it was to save her life.

1. Fraud in the Factum v. Fraud in the Inducement
   1. Fraud in the Factum: fraud was committed upon you on the question of what is actually happening. (Ex: Gyno who says he’ll give an examine but has sex with you.)
   2. Fraud in the Inducement: your motivations and means of accomplishing the bad act. Misleading the other party as to the facts upon which he/she will base his/her decision to act.
      1. In this case, she knows she is having sex but she thinks it is for medical purposes. This is fraud in the inducement (not like the Gyno example!)
   3. If someone pretends to be your spouse, the court says this is fraud in the factum. Why?
      1. You thought you were having good sex but instead you are committing adultery? But if the same test is used – a woman still knows she’s having sex but just not with her husband. So what is the real distinction? If it is not “knowing”
      2. An implicit distinction may be that people who have sex with their husband are good women and everyone else who doesn’t is not virtuous. We feel bad for the wife b/c she is having her virtue violated but we don’t feel bad for the victim here b/c she is not a virtuous woman – she’s a whore, she has sex outside marriage.
      3. Having sex with someone you think is your husband is more dangerous – more likely to be unprotected, pregnancy, STDs, etc.
2. Putting aside the deception in this case, this could still be considered raped in another way:
   1. He is the source of the fear. Under the MPC, he compels her to submit by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping.
      1. But she still could have gotten a 2^nd opinion.
   2. Also a question about her capacity to consent.