BORO V. SUPERIOR COURT
163 Cal.App.2d 1224 (1985)
NATURE OF THE CASE: Boro (D) sought a writ of prohibition to prevent respondent superior court from continuing with the prosecution of him on the charge of rape, in violation of Cal. Penal Code 261(4), on the basis that the evidence at the preliminary hearing established that the victim was conscious of the nature of the sexual act.
FACTS: Ms. R received a phone call from a person identified as Dr. Stevens. The 'Dr.' told Ms. R. that she had contacted a highly infectious and perhaps fatal disease, that she could be sued as a result and that the disease had come from using public toilets. Of course there were only two ways to treat this disease and the first was a painful and costly surgery costing over $9,000, requiring that Ms. R stay in the hospital for over six weeks. The second was to have sexual intercourse with an anonymous donor who had been injected with the serum that cures the disease. The latter procedure would only cost $4,500. When Ms. R. stated that she lacked the funds, the Dr. told her that a $1,000 down payment was sufficient. Ms. R. discussed her intentions with her work supervisor and went to the hotel arranged for the treatment. The Dr. became furious that Ms. R had consulted with her employer and instructed her to conceal the treatment. Ms. R. then called her employer told him that she would not go through with the procedure and checked into another hotel and waited for the donor. Boro (D), the donor, arrived and had sexual intercourse with Ms. R. D was charged with rape. A motion to set aside was given as to rape but not as to the section 261 when a person is unconscious of the nature of the act and this is known to the accused. D filed this writ of prohibition against the Count II charge.
ISSUE:
RULE OF LAW:
HOLDING AND
DECISION:
LEGAL ANALYSIS:
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