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

AuthorMcHugh, James T.
PositionState Constitutional Commentary: An Interdisciplinary Examination of State Courts, State Constitutional Law, and State Constitutional Adjudication

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 protests to be thinly veiled acts of encouragement."(3) The appeals court overturned the conviction, and the supreme court upheld that decision. Both appellate courts declared, in effect, that the defendant was acting reasonably in assuming that consent had been granted by the accuser for engaging in sexual intercourse. This conclusion was reached through a strict, and arguably rigid, interpretation of the statutory definition of rape found within the Pennsylvania Criminal Code, which states:

A person commits a felony of the first degree when he

engages in sexual intercourse with another person not his


(1) by forcible compulsion;

(2) by threat of forcible compulsion that would prevent

resistance by a person of reasonable resolution.

(3) who is unconscious; or

(4) who is so mentally deranged or deficient that such

person is incapable of consent.(4)

The law of contracts within the common law (as well as the explicit rules of the United States Uniform Commercial Code) traditionally has cited similar exceptions for determining when in apparent consent to a contract is deemed to be invalid. According to one scholar:

[O]ne who is intoxicated or otherwise under an incapacity

may, as fully as his incapacitated state will allow, intend to

enter a contractual undertaking; yet if his incapacity

deprives him of the ability to comprehend fully the nature of

his acts, or is deemed as a matter of law to be insufficient to

give rise to contractual liability, his subjective intent becomes


However, the Pennsylvania courts quickly dispensed with considerations of mental incapacity or mental coercion.(6) The courts also rejected any claim regarding 'a threat of forcible compulsion," finding that a direct threat had never been made by the defendant.(7) Therefore, both courts focused upon the issue of whether or not, according to the law, conditions constituting "forcible compulsion" had occurred that would have invalidated any claim to "consent" to sexual intercourse on the part of the accuser, as claimed by the defendant. The Superior Court rejected some of the arguments offered by the defendant (such as the absence of physical injury or aggressive resistance on the part of the accuser) that the incident lacked "forcible compulsion." But it ultimately rejected the finding of the trial court that this sort of compulsion had been present. In order to explain this conclusion, the court reviewed the accuser's account of the events as they occurred:

Here, the victim testified that the physical aspects of the

encounter began when appellant "kind of pushed me back

with his body. It wasn't a shove, it Was just kind of a

leaning-type thing." She did not testify that appellant

"pinned" her to the floor with his hands thereafter; she

testified that he "started kissing me . . . [and] lift[ing] my

shirt [and] bra . . . straddling me kind of . . . shifting at my

body so that he was over me." . . . Appellant did not push,

shove or throw the victim to his bed; he "put" her on the bed,

not in a "romantic" way, but not with a "fast shove either."

Once on the bed, appellant did not try to restrain the victim

with his hands in any fashion. Rather, while she was "just

kind of laying there," he "straddled" her, "quick[ly] undid" the

knot her sweatpants, "took off" her sweatpants and

underwear, placed the "weight of his body" on top of her and

"guided" his penis inside her vagina.(8)

The Supreme Court emphasized that part of the accuser's testimony in which the issue of actual physical contact was specifically recounted, even more highly than the Superior Court:

In regard to the critical issue of forcible compulsion, the

complainant's testimony is devoid of any statement which

clearly or adequately describes the use of force or the threat

of force against her. In response to defense counsel's

question, "Is it possible that [when Appellee lifted your bra and

shirt] you took no physical action to discourage him," the

complainant replied "It's possible." When asked, "Is it

possible that [Appellee] was not making any physical contact

with you . . . aside from attempting to untie the knot [in the

drawstrings of complainant's sweatpants]," she answered "It's

possible." . . . She agreed that Appellee's hands were not

restraining her in any manner during the actual penetration,

and that the weight of his body on top of her was the only

force applied. She testified that at no time did Appellee

verbally threaten her.(9)

The Superior Court appeared, at one point, to acknowledge that the accuser's consent could not be derived from the mere lack of physical resistance. Nonetheless, it utterly failed to demonstrate any appreciation of the more pervasive issues of male domination and female fear that could more effectively explain the survivor's perspective that she was, indeed, raped.(10) Instead, that court focused upon the narrow contractual interpretation of this incident, which led it to conclude that the defendant's perspective that consent did exist was sufficiently valid to warrant a reversal of the conviction. The court explained:

Evidence of verbal resistance is unquestionably relevant in a

determination of "forcible compulsion." At least twice

previously this Court has given weight to the failure to heed

the victim's oral admonitions. . . . In each such case,

however, evidence of verbal resistance was only found

sufficient where coupled with a sufficient threat of forcible

compulsion, mental coercion, or actual physical force of a type

inherently inconsistent with consensual sexual intercourse.

Thus, although evidence of verbal protestations may be

relevant to prove that the intercourse was against the victim's

will, it is not dispositive or sufficient evidence of "forcible


The Pennsylvania Supreme Court confirmed this approach when it also rejected the relevance of the accuser's protestations to the defendant in determining whether or not consent had been established. It did so, in part, through reference to its 1988 precedent, Commonwealth v. Mlinarich,(12) in which the court again supported a lower court ruling that relied upon a narrow construction of the relationship between "forcible compulsion" and "consent" regarding rape. This precedent appeared to offer a definitive basis of support for the court's ultimate decision in the Berkowitz case. In Berkowitz, the court noted:

As to the complainant's testimony that she stated "no"

throughout the encounter with Appellee, we point out that,

while such an allegation of fact would be relevant to the issue

of consent, it is not relevant to the issue of force. In

Commonwealth v. Mlinarich, this Court sustained the reversal of

a defendant's conviction of rape where the alleged victim, a

minor, repeatedly stated that she did not want to engage in

sexual intercourse, but offered no physical resistance and Was

compelled to engage in sexual intercourse under threat of

being recommitted to a juvenile detention center. The

Opinion in Support of Affirmance acknowledged that physical

force, a threat of force, or psychological coercion may be

sufficient to support the element of "forcible compulsion," if

found to be enough to "prevent resistance by a "Person of

reasonable resolution." However, under the facts of

Mlinarich, neither physical force, the threat of physical force,

nor psychological coercion were found to have been proven,

and this Court held that the conviction was properly reversed

by the Superior Court. Accordingly, the ruling in Mlinarich

implicitly dictates that where there is a lack of consent, but

no showing of either physical force, a threat Of physical force,


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