Commonwealth v. Berkowitz

Supreme Court of Pennsylvania · 1994 · Criminal Law

641 A.2d 1161 (1994)

Updated August 1, 2026

Criminal Lawrapeforceforcible compulsionlack of consentindecent assaultRape Shield Lawphysical force

Facts

The complainant entered appellee's dorm room, stayed after he asked her to, and sat on the floor. Appellee lifted her shirt and bra and massaged her breasts, unsuccessfully attempted to put his penis in her mouth, locked the door, pushed her onto the bed in a manner she described as not a throw and not a fast shove, removed her undergarments from one leg, and penetrated her vagina. She testified that she said "no" throughout the encounter and wanted to leave, but also acknowledged no verbal threats, no restraint during penetration, and that appellee's body weight was the only force applied at that point; the door could be easily unlocked from inside and she never tried to unlock it. At trial, the defense also sought to introduce evidence that the complainant and her boyfriend argued about her alleged infidelity, which the trial court excluded under the Rape Shield Law.

Issue

Whether the evidence was sufficient to prove rape by forcible compulsion where the complainant did not consent but the evidence showed no clear physical force, threat of force, or psychological coercion beyond the sexual act itself. The court also considered whether the Rape Shield Law barred evidence that the complainant and her boyfriend argued over her alleged infidelity, and whether the evidence was sufficient to support indecent assault.

Rule

For rape under 18 Pa.C.S. § 3121, "forcible compulsion" means something more than lack of consent. Where there is no showing of physical force, threat of physical force, or psychological coercion sufficient to prevent resistance by a person of reasonable resolution, the forcible-compulsion element is not met. By contrast, indecent assault under 18 Pa.C.S. § 3126 requires indecent contact without the other person's consent. Under the Rape Shield Law, evidence closely tied to allegations of the victim's past sexual conduct, such as disputes over alleged infidelity, is inadmissible.

🔒

See the holding & full analysis

Create a free KwikCourt account to unlock the rest of this brief — and practice the case.

The court's holding and reasoning
Doctrine tests, pitfalls & exam hypotheticals
10 practice questions + 4 AI-graded essays on this case

Free sample · practice this case

Test yourself

One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Pittsburgh, Lena Ortiz visited Devin Cole in his apartment after a study session. During kissing, Lena repeatedly said "no" to intercourse and tried to turn her head away, but later testified that Devin made no threats, did not hold her down, and used no force beyond his body weight during penetration.

If Devin is charged with rape based on forcible compulsion, which is the strongest argument regarding the sufficiency of the evidence?

Explanation. The governing rule is that forcible compulsion requires something more than lack of consent. Repeated statements of "no" are relevant to nonconsent, but they do not by themselves prove forcible compulsion. Where the evidence shows no physical force, no threat of physical force, and no psychological coercion sufficient to prevent resistance by a person of reasonable resolution, the rape element is not met.