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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…
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