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Commonwealth v. Berkowitz

Supreme Court of Pennsylvania
641 A.2d 1161 (1994)
ELI5:

Rule of Law:

The element of 'forcible compulsion' required for a rape conviction under Pennsylvania law requires proof of force, a threat of force, or psychological coercion that is sufficient to prevent resistance by a person of reasonable resolution; a mere lack of consent, such as a verbal 'no,' is insufficient on its own.


Facts:

  • The complainant, a female college student, entered the dorm room of Robert A. Berkowitz, mistakenly believing it was his roommate's room.
  • Berkowitz awoke and asked her to stay; she agreed and sat on the floor.
  • Berkowitz moved next to her, lifted her shirt and bra, massaged her breasts, and unsuccessfully attempted to place his penis in her mouth.
  • After they both stood up, Berkowitz locked the door.
  • Berkowitz then pushed the complainant onto the bed, which she described as not a 'shove' but also not 'slow like a romantic kind of thing.'
  • He removed her undergarments from one leg and penetrated her vagina with his penis.
  • The complainant testified that she said 'no' throughout the encounter but that Berkowitz did not verbally threaten her, her hands were not restrained during penetration, and the only force applied was the weight of his body.
  • After ejaculating on her stomach, Berkowitz stated, 'Wow, I guess we just got carried away,' to which she replied, 'No, we didn’t get carried away, you got carried away.'

Procedural Posture:

  • Robert A. Berkowitz was tried by a jury in a Pennsylvania trial court.
  • The jury convicted Berkowitz of one count of rape and one count of indecent assault.
  • Berkowitz, as the appellant, appealed his convictions to the Superior Court of Pennsylvania, an intermediate appellate court.
  • The Superior Court reversed the rape conviction and discharged Berkowitz on that charge, finding the evidence of forcible compulsion was insufficient.
  • The Superior Court also reversed the indecent assault conviction and remanded for a new trial due to its finding that evidence was improperly excluded under the Rape Shield Law.
  • The Commonwealth, as the appellant, appealed the Superior Court's decision to the Supreme Court of Pennsylvania, the state's highest court.

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Issue:

Is a victim's testimony that she verbally expressed non-consent (i.e., said 'no') throughout a sexual encounter, without additional evidence of physical force, threats of force, or psychological coercion, sufficient to establish the element of 'forcible compulsion' required for a rape conviction under 18 Pa.C.S. § 3121?


Opinions:

Majority - Cappy, Justice

No. The element of 'forcible compulsion' required for a rape conviction demands more than a mere lack of consent. The court reasoned that the legislature deliberately chose different standards for rape ('forcible compulsion') and indecent assault ('without the consent of the other person'), indicating that a higher level of proof is required for rape. The complainant's testimony, while clearly establishing a lack of consent by her repeated verbal objections, was devoid of any statements describing the level of force or threat of force necessary to constitute forcible compulsion. Her description of the push onto the bed was equivocal, and she confirmed she was not restrained and no verbal threats were made. Citing Commonwealth v. Mlinarich, the court affirmed that where there is a lack of consent but no showing of physical force, a threat of physical force, or psychological coercion, the 'forcible compulsion' element for rape is not met.



Analysis:

This decision significantly clarifies the meaning of 'forcible compulsion' in Pennsylvania, establishing a distinct and higher evidentiary standard for rape compared to other sexual offenses. It mandates that prosecutors prove not only non-consent but also a level of force, threat, or coercion capable of overcoming the will of a reasonable person. This ruling makes it more challenging to prosecute rape cases where there is no evidence of overt violence or threats, placing a greater burden on the prosecution to demonstrate compulsion beyond that inherent in the act of non-consensual intercourse itself. The case solidifies the statutory distinction between rape and indecent assault, impacting charging decisions and trial strategies in sexual assault cases.

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