Commonwealth v. Berkowitz

Citation. 415 Pa. Super. 505, 609 A.2d 1338, 1992 Pa. Super.1377.

Brief Fact Summary. The Defendant, Berkowitz (Defendant), was convicted by jury of rape. While the victim said no to the Defendant’s advances, there was no evidence of force or threats made by the Defendant.

Synopsis of Rule of Law. The “forcible compulsion” required to sustain a conviction for rape in Pennsylvania must be more than verbal resistance, i.e. threat or actual force.

Facts. The Defendant and the victim were college sophomores at East Stroudsburg State University. On the afternoon in question, the victim proceeded to her boyfriend’s dormitory lounge to meet him. He had not yet arrived, so the victim walked up to the Defendant’s room to look for his roommate, Earl Hassel (Mr. Hassel), who is a friend of the victim. She knocked on the door several times but received no answer. After writing a brief note to Mr. Hassel, she knocked again. She still received no answer, so she tried the doorknob, which was unlocked. The victim entered the room and saw someone lying on the bed with a pillow over his head, whom she thought was Earl Hassel. Instead, it was the defendant. The victim asked which dresser was Mr. Hassel’s and she left the note she had written. The Defendant then asked the victim to “hang out for a while.” She complied. Thereafter, the Defendant began to make certain advances at the victim such as kissing her and lifting up her shirt and bra an
d fondling her. The victim then said no. The victim never physically resisted the Defendant, but she did repeatedly verbally protest. The Defendant and the victim then engaged in sexual intercourse.

Issue. Does the evidence presented establish “forcible compulsion,” as required by the Pennsylvania rape statute?

Held. No. The determination of whether there is sufficient evidence to demonstrate that the Defendant engaged in sexual intercourse by forcible compulsion will be made based upon the totality of the circumstances presented to the fact finder. Here, the victim was not mentally coerced, nor is there any evidence of a threat of forcible compulsion. While the Commonwealth argued that any force used to complete the act of intercourse constituted “forcible compulsion” in the absence of consent, the Pennsylvania Superior Court rejected this notion by stating that the legislature did not criminalize nonconsensual intercourse. Hence, the evidence of force was insufficient to support the conviction.

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Discussion. Rape by forcible compulsion requires more than a lack of consent. No does mean no, but rape requires actual force or a threat of force in addition to the failure to consent.

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