Commonwealth v. Berkowitz

The Facts

Victim left her college class and went to her dorm and drank a martini.  She then went to another dorm to find her friend, Earl Hassel.  She knocked on the door, but found no answer.  The door was unlocked and she went in and found defendant, Hassel’s roommate sleeping on the bed.  Defendant, asked her to stay for a while.  He asked her to sit on the bed and for a back-rub, and she declined both.  She then moved to the floor where she was sitting, lifted up her shift and felt her breasts.  He then took off his pants and “unsuccessfully attempted to put his penis in her mouth.”  He then got up and locked the door and had sex with her.  After he said they had gotten carried away, to which she replied “No, we didn’t get carried away, you got carried away.”  Victim, however, never resisted, and testified that defendant never restrained her.  Victim did testify that she tried to leave the room and said “no” throughout the encounter.

Procedural History

Convicted at trial, reversed on appeal for lack of an element of force.

Relevant Statute

A person commits a felony of the first degree when he engages in sexual intercourse with another person not one’s spouse; 1. By forcible compulsion; 2. By threat of forcible compulsion that would prevent resistance by a person of reasonable resolution; 3. Who is unconscious; 4. Who is so mentally deranged or deficient that such a person is incapable of consent.


Victim need not resist.  “The force necessary to support a conviction of rape … need only be such as to establish lack of consent and to induce the victim to submit without additional resistance.”

The Issue

Whether conviction for rape can be sustained where lack of consent exists and is expressed but no force is used.

The Holding/Reasoning

No, appellate decision upheld. The element of force is a requirement of the statute.  Insufficient evidence exists to show the presence of force.  The defendant’s own testimony demonstrates that no force was used.  The legislature in the relevant statute clearly put the phrase “forcible compulsion” into effect as distinct from other sexual crimes.

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