Interpreting the 'sexual contract' in Pennsylvania: the motivations and legacy of Commonwealth of Pennsylvania v. Robert A. Berkowitz.

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State Constitutional Commentary: An Interdisciplinary Examination of State Courts, State Constitutional Law, and State Constitutional Adjudication

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Interpreting the 'sexual contract' in Pennsylvania: the motivations and legacy of Commonwealth of Pennsylvania v. Robert A. Berkowitz.

Commonwealth v. Berkowitz,(1) the Pennsylvania Supreme Court's 1994 ruling affirming the reversal of a 1992 rape conviction, drew considerable attention toward the broader and continuing controversy surrounding the legislative drafting and judicial interpretation of statutes that address the issue of sexual violence against women. The interpretations of both the intermediate and high courts were regarded widely as being both unusual and outrageous. However, they confirmed a tendency of many state courts to interpret such statutes, not only as narrow constructions, but also as being consistent with the contractual understanding of sexual relationships that traditionally have been embraced within liberal democratic jurisprudence.

One of the notable aspects of this particular case is the fact that, in terms of the rape conviction, the Pennsylvania Supreme Court and the Superior Court were consistent regarding each bench's particular interpretation of the state's rape statute. The supreme court's opinion essentially confirmed the lower court's narrow approach and reasoning, thus providing a good example of the thoroughness with which judicial constructionists have been appointed throughout the Pennsylvania appellate system.(2) However, an even more significant aspect of this case is the fact that both court rulings, despite the apparently surprising conclusions that they reached, draw attention to a traditional problem regarding the notion of "consent" and the way it is treated within a rape case. Therefore, this case offers an excellent example of the need to rethink the traditional legal and judicial understanding of rape as a crime that is determined primarily by proving the absence of "consent" involving an incident of sexual intercourse.

Robert A. Berkowitz was a college sophomore who was convicted of raping a fellow student in his dormitory room. The testimony of both the accuser and the defendant revealed that the accuser repeatedly said "no" throughout the ordeal, although the defendant claimed that "she did so while `amorously . . . passionately' moaning. In effect, he took such prote...

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