Commonwealth v. Berkowitz (1992)

Q1. Explain how the court came to the conclusion that the Pennsylvania rape statute required extrinsic force.

According to Pennsylvania law, rape may occur either by “forcible compulsion” or the threat of forcible compulsion which “would prevent resistance by a person of reasonable resolution” (“Commonwealth v. Berkowitz”). The Pennsylvania court interpreted this wording as meaning that direct, extrinsic force or the threat of such force was required for an act to constitute sexual assault.

Q2. LIST all the facts relevant to deciding whether Roberts Berkowitz’s actions satisfy the extrinsic force requirement.

Berkowitz pushed the victim down on his bed, straddled her, and ignored her statement that she wanted to meet her boyfriend and leave his room. When he lifted up her shirt and bra, the victim clearly said, “No.” Berkowitz then unzipped his pants and attempted to put his penis in the victim’s mouth. She verbally protested but according to the statement of facts of the case did not physically resist. Berkowitz ignored her, locked the door, pushed her on the bed, straddled her, stripped her of her clothing (including removing her underwear from one of her legs) and then pushed his penis into her vagina. The victim said that she felt unable to resist and kept saying no. Berkowitz ejaculated onto her stomach.

Q3. Assume you’re the prosecutor, and argue that Robert Berkowitz did use extrinsic force to achieve sexual penetration.

Berkowitz repeatedly shoved the victim and ignored her repeated statements that she did not want to proceed further with any sexual activity. She made no move to encourage him and Berkowitz kept manipulating her body to comply with his wishes. He locked the door, which prevented the victim from leaving. The victim stated that she felt frightened. The statute does not require the victim to fight to free herself... The victim’s statement that she felt afraid indicates that she felt under the threat of force as well as subjected to extrinsic force.
Q4. Now, assume you’re the Berkowitz’s lawyer, and argue that he didn’t use extrinsic force to achieve sexual penetration.

Berkowitz’s lawyer argued that the victim could have left at any time and she stated that he merely pushed her gently and did not actively resist his advances. The door was locked to prevent the couple from being interrupted, not because he wished to constrain her. He did not engage in any physically violent activity or verbally threaten her and her statement of “no” was apparently interpreted as foreplay.

Q5. Was Superior Court “right” to reverse Robert Berkowitz’s rape conviction? Explain your answer.

No, the Superior Court was clearly in the wrong. A woman should not have to fight tooth and nail to prove that she is resisting rape. The victim clearly stated “no” and did nothing to indicate she was consenting to sexual activity. What constitutes a severe threat in the eyes of someone sitting on the judge’s bench, safe and secure, is clearly very different from a young, vulnerable woman held captive in a dorm room. The court clearly erred in stating, “The facts show no more than what legal scholars refer to as ‘reluctant submission,’” justifying its decision because “the complainant herself admits that she was neither hurt nor threatened at any time during the encounter. She admits she never screamed or attempted to summon help. The incident occurred in a college dormitory in the middle of the afternoon” (“Comm v. Berkowitz”). But rape does not always occur in dark alleyways and the idea of reluctant submission seems like a reasonable definition of rape.

Q6. Did…