Commonwealth v. Berkowitz
Superior Court of Pennsylvania, 1992.
Author: Jim

Facts:

-D and V both college sophomores friends

-V went to D’s room, D had sex with V

-V kept saying no, but in a passionate way

-No force or threat of force used by D

-Incident occurred in school dormitory 12 in the afternoon

Procedure: Jury found D guilty of rape and incident assault.

Issue:  Did the facts involved in this cases amount to rape?

Holding: No

Rationale:

-Rape is by forcible compulsion or by treat of forcible compulsion

-Factors that can be considered: respective ages of V and D, the respective mental and physical conditions of the victim and the accused, the atmosphere and physical setting, the extent to which accused may have been in a position of authority, domination or custodial control over the victim, and whether was under duress.

-In this case, none of the above stated elements are fulfilled to establish force or threat of force.

-Only the evidence that victim continually said no does not support a finding of forcible rape.

Evidence of verbal resistance can be proper if used along with other evidence.