Law fraud in the inducement laws in California and western perspectives

Fraud in Fact and Fraud in the Inducement LAWS IN CALIFORNIA AND WESTERN PERSPECTIVES

The California Court of Appeals, Second Appellate District recently held in the case of People v. Julio Morales, that under the current state penal law, an individual who impersonates another for purposes of sexual intercourse cannot be guilty of rape. According to the Appellate Court, and the cases it cited, the only exception is where the individual impersonates the victim’s spouse. When news of the Court’s decision reached the public, the outrage was widespread and unanimous. On the surface, the Court’s decision - which distinguished between married and unmarried individuals - seemed arbitrary and blatantly unfair in the context of a rape. However, upon further analysis, it appears that the Court’s decision was supported by long standing legal principles. Specifically, in reaching its conclusion, the Court focused on whether the act at issue constituted fraud in fact versus fraud in the inducement. This paper discusses the facts as presented to the Morales Court, then analyzes the legal history of the fraud in fact versus fraud in inducement distinction, and concludes by discussing ways in which penal codes can be amended, so as to prevent future injustices from occurring.
Facts
In the early morning hours of February 21, 2009, the defendant Julio Morales, entered victim’s bedroom after victim’s boyfriend exited, and proceeded to physically touch and kiss victim (Jane Doe) while she was sleeping.Without truly revealing his identity, he then had sexual intercourse with Doe. Morales does not recall Doe ever trying to push him off or resisting sex because she seemingly kissed him back. However, Morales stopped because he felt like he was betraying his girlfriend. Doe’s story differs in that she claims attempting to stop him, but was unable to and defendant forcibly re-inserted his penis back into her. Doe again pushed him off and finally Morales stopped and ran out of the room. During the jury trial, the prosecution, referring to CRIMCAL No. 1003 jury instructions, argued that “A woman is unconscious of the nature of the act if she is unconscious or asleep or not aware that the act is occurring or not aware of the essential characteristics of the act because the perpetrator tricked, lied to, or concealed information from her.” After the trial, defendant Morales was convicted under penal code Section 261, subdivision (a)(4) Rape of an Unconscious Person, and was sentenced to at least three years. On appeal, Morales’s attorney argued that the jury instruction used by the prosecution was flawed, and that the case should be remanded for a new trial. Specifically, the issue dealt with the last portion of the jury charge which stated that the perpetrator “tricked, lied to, or concealed information from her.” Although the jury could have correctly convicted the defendant if they believed the victim was asleep or unconscious at the time of the intercourse, they could not convict him based on the later portion of that instruction, because that would be fraud in the inducement, which cannot apply in this case. In essence, the prosecutor argued both the correct theory, in that the victim was unconscious (i.e. asleep), as well as the incorrect theory that she was unaware and deceived into believing that the defendant was her boyfriend. Since it is unknown which theory the jury used to convict the defendant, the Appellate Court held that a new trial is necessary.
Fraud in Fact Versus Fraud in the Inducement
Fraud in Fact
The California Courts have been bound by the language of the 1800’s concerning the rape statute Section 261. This language holds criminal liability only when there is a spousal impersonation, and any other forms of impersonation were to be found not liable. This exact issue is shown in the instant case. The Court outlined the analysis of where the law stands with rape by fraud and rape in the inducement. This distinction has created an unfortunate, and many will argue unfair, loophole that fails to afford the same protection to unmarried victims of rape as it does to married ones. Nevertheless, fraud in fact is applicable and could have been used to find the defendant guilty. The courts are very inconsistent when it comes to this issue of rape by someone other than one’s spouse, and deceives the victim into sexual intercourse by fraud or inducement because it ultimately determines criminal liability that is bound by the language of the statute.
First, the language of the rape statute needs to be examined particularly in subsection (a)(4)(C). This subsection deals directly with of fraud in fact, stating,
“Where a person is at the time unconscious of the nature of the act, and this is known to the accused.” As used in this paragraph, “unconscious of the nature of the act” means incapable of resisting because the victim meets one of the following conditions:
Was unconscious or sleeping,
Was not aware, knowing, perceiving, or cognizant that the act had occurred,
Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraud in fact.” 1
The words of the legislature, “incapable of resisting” are not used to describe the lack of consent, but the actual lack of the victim’s awareness. This lack of awareness is synonymous to unconsciousness which is tied to the issue of consent. If the victim is unaware of the circumstances, then there is no way for the victim to give consent. When dealing with consent, courts have long-recognized two kinds of fraud: fraud in the inducement and fraud in fact. Fraud in fact is applied in narrower situations than fraud in the inducement would be. In People v. Harris, the Court stated that, “the victim is fraudulently induced to consent to the doing of act X; the perpetrator of the fraud, in the guise of doing act X, actually does act Y.”  The court further explains that for this reason, the act violates consent since there was never any consent to do that particular act. The distinction becomes whether the deception is misleading the fact itself, than no consent given but if to some collateral matter than there is legal recognized consent. In defining the rape statute, the victim does not “need to be totally and physically unconscious.” Therefore the victim in our case must have had knowledge while acting freely and voluntarily to the nature of the act, that is, the act of sex with Defendant Morales. We cannot say this to be true, and the court should reevaluate the language of statue of 261.
In People v. Minkowski, the California Appellate Court held that if the misunderstanding as to the fact itself was caused by the deception, then there is no legal consent.  It further explains that the defendant, a doctor, obtained permission to insert a metal rod inside the victim as a treatment for menstrual cramps.  However, he would then insert his penis after the rod and begin to have sexual intercourse with the victim. The defendant got consent, but only for treatment, not the sexual intercourse. The victims were unconscious to the nature of the act, and therefore were unable to resist until penetration had already occurred. The victims had no knowledge or awareness to the act of sexual intercourse that had been performed due to the fraud in fact, and therefore was in clear violation of section 261(a)(4)(C).
Like Minkowski, in People v. Ogunmola, a doctor manually penetrated the victim, and then inserted his penis. The victim was fully aware and conscious to the pathological exam, however completely “unconscious” to penis penetration. There was no consent given for that act and the victim was unable to resist because she was unaware of the essential fact that he was no longer examining her, but rather having sexual intercourse.  As stated above, the victim does not totally need to be unconscious to violate the statute, and this provides a prime example of a completely conscious victim who fell within the statute because of the perpetrator’s fraud in fact, making her unaware of essential characteristics of the acts.
These cases are factually different with the case at hand, but the legal theory behind them is consistently the same. In the present case, Jane Doe was unconscious or sleeping, and even if she was beginning to wake up, she still was unaware of the essential elements. Her boyfriend was just with her, so why would she believe that the male kissing her would be anyone else but him. The defendant admitted that he thought she believed defendant was her boyfriend. With fraud in fact, the lights being off and the boyfriend leaving for the night while victim was asleep, the making of sexual physical moves on a sleeping individual, while never revealing one’s true identity are all factors that derive from essential characteristics of the act of sexual intercourse. In other words, defendant was not victim’s boyfriend, therefore making this situation fall under §261(a)(4)(C). The essential characteristics of having sex with defendant were not present, making Doe unaware and having no knowledge of the act until it was too late, and made the identification that defendant was not her boyfriend. Similarly to the patient cases of Minkowski and Ogunmola, this is a case of fraud in fact, and therefore Morales could have been held liable under section §261(a)(4)(C).
Fraud in the Inducement
As was stated above, §261(a)(4) states in relevant parts that rape has occurred where the victim is at the time unconscious of the nature of the act, and this is known to the accused. The statute continues to define what the phrase “unconscious of the nature of the act” means. Among other things, a person is unconscious if they are incapable of resisting due to fraud in the inducement. Although the statute does not explicitly use the term fraud in the inducement, §261 (a)(4)(D) states that a person is unconscious if they were not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrators fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose §261 (a)(4)(D). This is essentially fraud in the inducement [Italics added].
As discussed earlier, the law has bifurcated two types of fraud in determining the issue of consent in sex crime cases, namely fraud in fact and fraud in the inducement. In fraud in fact, the defendant seeks the consent of the victim to do act X, but then engages in act Y. California courts have held that there is no issue of consent in fraud in fact because the Defendant obtained consent, but it was to do X and not Y, and there is no consent to do Y.  By contrast, fraud in the inducement occurs when the defendant uses misrepresentations to induce the victim to consent to act X, and then commits act X. On the issue of consent, the California court in People v. Babaali stated that the general common law rule is that fraud in the inducement does not diminish consent because the victim agreed knowing the true nature of the act to be performed.  Said differently, courts have historically been reluctant to impose criminal liability on the defendant for fraud in the inducement because the victim consented to the particular act, even though it was under false pretenses.
Under § 261(a)(4), a person is unconscious of the nature of the act if they are incapable of resisting (due to 4 listed conditions). To contrast the above holding in Babaali, and Pham, the court in People v. Dancy held that there is no requirement of consent in either §261(a)(4)(C) or (D) because §261 explicitly states consent in other sections and does not do so under §261(a)(4). Rules of statutory construction demand that criminal statutes be construed narrowly and if congress clearly stated consent in other portions of §261, but not in §261 (a)(4), then it was done so to not require consent. To further the ambiguity, fraud in the inducement can occur where the victim was unaware of the essential characteristics of the act due to the accused’s misrepresentation, and since they were unaware of the essential characteristics of the act, they were “unconscious” as to the “nature of the act.”  Therefore, Defendant’s defense about Jane Doe consenting fails because there is no requirement of consent in either fraud in fact or fraud in the inducement under § 261(a)(4)(C) or (D).
The court in People v. Dancy reasoned that when the statute states that “unconscious of the nature of the act” means incapable of resisting …[due to listed factors], the phrase “incapable of resisting,” described the victim’s actual lack of awareness of the act. In the case at issue, People v. Morales, Jane Doe did lack the awareness of the act because she did not know who she was having sex with. Therefore, she was unconscious of the nature of the act.
The court in Morales held that the prosecutor relied on two theories to prove Defendant’s culpability. The first, consistent with §261(a)(4)(A) was that Jane Doe was unconscious because she was asleep. The court held that this was the correct theory. But the prosecutor also relied on what the court referred to as the “incorrect theory,” that there was fraud because of Defendant’s misrepresentation. Based on these theories, the jury was improperly instructed on when a rape victim is unconscious. This instruction was a hybrid of §261(a)(4)(B), §261(a)(4)(C), and §261(a)(4)(D). The jury instruction also left out a crucial element under §261(a)(4)(D) that the misrepresentation was one that was to serve a professional purpose, but served no such purpose. This was a mistake of law because the jury was not instructed in this manner.
California cases on point with §261(a)(4)(D) and the issue of professional purpose have consistently been doctor-patient cases w...