Sexual Assault and Legal Standards

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 (indeed in some situations, it would be considered very risky and unwise for a victim to do so). 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 the complainant share no/little, some, equal, most of the responsibility for the sexual intercourse? The indecent sexual contact? Defend your answers.
No, she shared no responsibility for the intercourse. She clearly stated “no.” And any activities prior to the incident in which the victim may have flirted with the perpetrator of the rape are irrelevant.

Q1. LIST all the evidence relevant to determining whether M.T.S.’s actions satisfied the intrinsic force requirement.
According to the facts of the case, the accused (a juvenile) confined the girl in her own house against her will and had sexual intercourse with her without her consent (“State in the interest of S.M.I.”). To satisfy the stipulations of the law, the act must involve sexual penetration, be done knowingly and be accomplished through physical force or coercion.

Q2. Summarize the court’s reasoning for adopting the intrinsic force rule.
In this particular instance, the trial judge unequivocally found that “no” means “no” in a rape case and there is nothing equivocal in the nature of this statement. The boy claimed that the girl did not forcibly resist but the judge found that the boy’s refusal to take “no” as an answer, combined with the fact that he used his superior size to pin her down and hold the victim’s wrist, constituted an intrinsic use of force and a lack of voluntary consent (“State in the Interest of S.M.I.”). In short, the girl believed that she had no way to resist the boy and that was enough in the court’s estimation to support a conviction for sexual assault. The court took a victim’s eye view of the situation, rather than viewing it through the eyes of the attacker.

Q3. Taking into account the evidence, decision, and reasoning in Berkowitz, which do you believe is the better approach to force requirement-extrinsic or intrinsic force? Explain your answer.
An intrinsic force requirement is far superior to an extrinsic force requirement. It is unreasonable to expect a rape victim to forcibly resist her attacker. In no other crimes is someone expected to show proof that he or she visibly resisted the attacker beyond saying “no.” With an extrinsic force requirement, the focus inevitably applies a standard which assumes the victim has a responsibility to physically resist, regardless of whether she feels safe to do so. It is also more appropriate to take a victim’s perspective of coercion. In the case of Berkowitz, the situation was solely viewed through the eyes of aggressor, who claimed that because the victim did not violently telegraph her displeasure and merely said “no” he felt justified in engaging in sexual activity with her. It is unacceptable that a legal standard be held to the standards of perpetrators; the perspective should take into consideration the victim’s perspective.

Q4. Should legislatures or courts decide which rule to adopt? Explain your answer.
Courts, not legislatures, should decide this matter because this is an issue of justice and should not be subjected to the democratic will of the people. In the court of popular opinion, rape victims have often been blamed for what they are wearing and their behavior towards the perpetrator beforehand. But such evidence should not be relevant in a court of law. Similarly, popular opinion might pressure legislatures to create legislation which demands that rape victims violently resist their attackers. But while this may be popular among members of the public who might have judged the behavior of the victim in the Berkowitz case, it is not good law or in keeping with the principles of justice.

Works Cited
Commonwealth v. Berkowitz (1992). Case Brief Summary. Web. 4 Nov 2017.
http://www.casebriefsummary.com/commonwealth-v-berkowitz/
Comm v. Berkowitz (1992). Justia. Web. 4 Nov 2017. https://law.justia.com/cases/pennsylvania/superior-court/1992/415-pa-super-505-0.html
State in the interest of S.M.I. (2012). Justia. Web. 4 Nov 2017. https://law.justia.com/cases/new-jersey/appellate-division-unpublished/2012/a4222- 10.html