Friday, December 14, 2007

The Joy of Lex, Part III: Rape and "Special Serums"

From Singer and LaFond, Criminal Law, p. 194:

[under common law i]f a man falsely pretended to be a doctor and told a woman she had a disease that could best be cured by having intercourse with an anonymous donor who had been injected with a special serum, he could not be convicted of rape because the woman understood that she was having sexual intercourse. See Boro v. Superior Court, 163 Cal. App. 3d 1224 (1985).

What, really? From the appellate opinion:


"Dr. Stevens" told Ms. R. that he had the results of her blood test and that she had contracted a dangerous, highly infectious and perhaps fatal disease; that she could be sued as a result; that the disease came from using public toilets; and that she would have to tell him the identity of all her friends who would then have to be contacted in the interest of controlling the spread of the disease.

"Dr. Stevens" further explained that there were only two ways to treat the disease. The first was a painful surgical procedure -- graphically described -- costing $ 9,000, and requiring her uninsured hospitalization for six weeks. A second alternative, "Dr. Stevens" explained, was to have sexual intercourse with an anonymous donor who had been injected with a serum which would cure the disease. The latter, nonsurgical procedure would only cost $ 4,500. When the victim replied that she lacked sufficient funds the "doctor" suggested that $ 1,000 would suffice as a down payment. The victim thereupon agreed to the nonsurgical alternative and consented to intercourse with the mysterious donor, believing "it was the only choice I had."
Boro v. Superior Court, 163 Cal. App. 3d 1224, 1226 (Cal. Ct. App. 1985)

The message seems to be don't rape strong, rape smart. Kind of bizzare, if you ask me.

And I should also point out that according to La Fond and Singer above, this doesn't apply if the defendant tricks the victim about the act of sex itself (i.e., the gynecologist saying he is inserting a medical instrument, but it it is, in fact . . .)

Still strange though.

4 comments:

mindy said...

A friend of mine invited me to join their hot pot dinner. One guy and three girls. We ate and chatted happily. Then, they asked me to tell them some useful legal knowledge.

So I recalled an odd thing from criminal law class. I friendly warned the gentleman that if he wanted to have sex in NJ, he probably needed to get a lawywer to draft a contract, make sure his lawywer put down every details and get the consent from the other party since according to the holding in M.T.S., a person could be charged with rape without affiramtive permission. We all laughed.

Then suddenly he turned to me seriously, "hey, you touched me twice without consent"
My response, "so what? usually a jury would believe a girl's story, not a guy's, from all the case I read"

He seemed to feel pretty "screwed up" BUT I paid my price too. He "sworn" that he would never invite me to dinner in case I bullied him again...He said that was "引狼入室" hahaha...

Russian Federation said...

hmm, she could still nail him for malpractice right? since the "remedy" is pretty obviously bogus.

Andy said...

No, because he wasn't a real doctor, for one thing. In any event, malpractice is a civil matter, not (usually) a crime you goto jail for.

Russian Federation said...

ah, i missed the "falsely pretended" part.