Commonwealth v. Berkowitz
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School
Ivy Tech Community College, Indianapolis *
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Course
211
Subject
Law
Date
Jan 9, 2024
Type
docx
Pages
3
Uploaded by cesiaeves
1.
Explain how the court came to the conclusion that the Pennsylvania rape statute
required extrinsic force.
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The court concluded that the Pennsylvania rape statute, 18 Pa.C.S.A. § 3121, required
extrinsic force, interpreting "forcible compulsion" as more than a lack of consent. The
complainant's testimony, lacking clear descriptions of force or threat, led the court to find
the evidence insufficient. The court referred to a previous case, Commonwealth v.
Mlinarich, which implied that more than a lack of consent is needed for "forcible
compulsion."
2.
List all the facts relevant to deciding whether Robert Berkowitz’s actions satisfy
the extrinsic force requirement.
-
Complainant's statement that Berkowitz's hands were not restraining her during the
actual penetration.
-
Emphasis on the fact that the only force applied was the weight of Berkowitz's body on
top of her.
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Complainant's testimony that at no time did Berkowitz verbally threaten her during the
encounter.
-
The record demonstrating that the door could be easily unlocked from the inside, but the
complainant did not attempt to go to the door or unlock it.
3.
Assume you’re the prosecutor, and argue that Robert Berkowitz did use extrinsic
force to achieve sexual penetration.
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Berkowitz initiated physical contact by lifting the complainant's shirt and bra without her
explicit consent.
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The act of attempting to untie the drawstrings of the complainant's sweatpants
demonstrates a deliberate and forceful action on Berkowitz's part.
-
The complainant described being put on the bed, with Berkowitz's actions characterized
as a push. Even if not a violent throw, the use of force in directing the complainant onto
the bed suggests an exertion of physical control.
-
Berkowitz's decision to lock the door adds an element of control and restriction on the
complainant's ability to leave, indicating an intention to exercise dominance and prevent
her escape.
-
Despite the complainant expressing a desire to leave and repeatedly saying "no"
throughout the encounter, Berkowitz persisted in his actions. This persistence suggests
an intentional disregard for the complainant's objections.
-
The complainant's acknowledgment that Berkowitz's hands were not restraining her
during penetration does not negate the use of force; the weight of Berkowitz's body on
top of her can be considered a form of physical restraint.
4.
Now, assume you're Berkowitz's lawyer, and argue that he didn’t use extrinsic
force to achieve sexual penetration.
-
The complainant confirmed that Berkowitz's hands were not restraining her during
penetration. The absence of physical restraint during this critical moment supports the
argument that force was not applied.
-
The complainant testified that Berkowitz did not verbally threaten her at any point during
the encounter. The absence of explicit threats undermines the argument for the use of
extrinsic force.
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Berkowitz's actions, such as lifting the complainant's shirt and attempting to untie the
drawstrings, were not violent or aggressive. The lack of physical force in these actions
suggests a non-coercive approach.
-
Berkowitz's invitation for the complainant to stay and engage in activities, such as
offering a back rub, suggests a legitimate intent for consensual interaction rather than a
coercive motive.
5. Was Superior Court “right” to reverse Robert Berkowitz’s rape conviction? Explain
your answer.
-
Yes, they were. The Pennsylvania statute, 18 Pa.C.S.A. § 3121, mandates the presence
of extrinsic force. The complainant's testimony lacked clear evidence of force or threats
by Berkowitz, as the court considered the absence of explicit resistance, violent actions,
or verbal threats during the encounter. The court's assessment, including an examination
of the complainant's subjective experience, revealed a scenario to be inconsistent with
the statutory requirement for extrinsic force.
6.
Did the complainant share no/little, some, equal, most of the responsibility for the
sexual intercourse? The indecent sexual contact? Defend your answer
-
I do not fully believe the complainant was entirely responsible for the encounter.
However, she did initially agree to stay in the room, participated in activities such as
sitting on the floor, and did not explicitly resist certain actions by Berkowitz. Additionally,
there was no indication of explicit verbal objections or attempts to leave the room until
later in the encounter, when she testified to saying “no” on several accounts; Berkowitz
counter-testified that the “no’s” she stated were “moaned passionately.” While consent
can be withdrawn at any point, the initial consensual context and the absence of
immediate objection may suggest some shared responsibility.
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