Commonwealth v. Berkowitz
609 A.2d 1338, 415 Pa. Super. 505 (1992)
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Rule of Law:
Under Pennsylvania's rape statute, the element of 'forcible compulsion' requires evidence of physical force, a threat of force, or moral/psychological coercion that is sufficient to overcome the victim's will. A victim's verbal resistance, such as repeatedly saying 'no,' is not, by itself, sufficient to establish forcible compulsion.
Facts:
- Robert Berkowitz and the victim were both college sophomores at East Stroudsburg State University.
- The victim went to Berkowitz's dormitory room in the afternoon to look for his roommate, but found only Berkowitz.
- At Berkowitz's request, the victim stayed in the room to talk for a while.
- Berkowitz initiated physical contact by leaning on her, straddling her, kissing her, and fondling her while she was on the floor.
- Throughout the encounter, the victim verbally protested, repeatedly saying 'no' and 'I gotta go, let me go.'
- Berkowitz locked the dorm room door, put the victim on the bed, removed her sweatpants and underwear, and engaged in sexual intercourse.
- The victim did not physically resist, scream for help, or sustain any physical injuries.
- Immediately after the encounter, the victim left, met her boyfriend, began crying, and her boyfriend called the police.
Procedural Posture:
- Robert Berkowitz was tried before a jury in a Pennsylvania trial court.
- The jury convicted Berkowitz of rape and indecent assault.
- Berkowitz filed post-verdict motions seeking relief from the convictions, which the trial court denied.
- The trial court sentenced Berkowitz to a term of imprisonment of one to four years for rape and a concurrent term for indecent assault.
- Berkowitz (appellant) appealed the judgment of sentence to the Superior Court of Pennsylvania, an intermediate appellate court.
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Issue:
Does a victim's verbal resistance alone, without evidence of physical force inherently inconsistent with consensual intercourse, threats, or other forms of coercion, constitute sufficient evidence of 'forcible compulsion' to sustain a rape conviction under Pennsylvania law?
Opinions:
Majority - Per Curiam
No. Verbal resistance alone does not constitute sufficient evidence of 'forcible compulsion' to sustain a rape conviction. The Pennsylvania rape statute requires proof of intercourse by 'forcible compulsion,' which is distinct from merely non-consensual intercourse. The court analyzed the encounter under the 'totality of the circumstances' and found no evidence of mental coercion, threats of force, or actual physical force beyond that inherent in the act of intercourse itself. The court reasoned that acts such as 'leaning' on the victim or placing body weight on her were not inherently inconsistent with consensual sex and, without more, could not be 'bootstrapped' into forcible compulsion. While verbal protests are relevant to show a lack of consent, the legislature's specific choice of the term 'forcible compulsion' means that words alone are insufficient to meet the statutory standard for rape.
Analysis:
This decision significantly narrowed the definition of 'forcible compulsion' in Pennsylvania, establishing that verbal non-consent alone is insufficient for a rape conviction. The ruling created a higher evidentiary bar for prosecutors, particularly in acquaintance or 'date rape' scenarios where overt physical violence or threats are absent. It highlights a critical distinction between the legal definition of rape, which requires proof of force, and the broader social understanding of rape as any non-consensual sexual intercourse. This case set a precedent that made it more challenging to secure rape convictions based solely on the victim's testimony of verbal resistance, requiring prosecutors to present additional evidence of force or coercion.
