Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: FRIDAY, June 3, 1994 TAG: 9406030126
SECTION: NATIONAL/INTERNATIONAL PAGE: A-1 EDITION: METRO
SOURCE: The New York Times NOTE: below
DATELINE: LENGTH: Medium
On Friday the Pennsylvania Supreme Court ruled that a man who did not use physical force, but had sexual intercourse with a woman who said "no" throughout the encounter, could not be found guilty of rape, because there had been no "forcible compulsion" as required by the Pennsylvania rape law.
A few days earlier the California Supreme Court had ruled that a man may be convicted of rape even if he was unarmed and the woman submitted without a struggle. The woman, 22, who was to be married the next day, was sleeping at a friend's house when she was awakened by her friend's fiance, who, naked, approached her from behind, pulled down her pants and had intercourse with her. The victim said she was too scared to cry out or struggle when the man, Hector Iniguez, attacked her.
Although the California rape law requires prosecutors to show that the act was accomplished through force, violence or fear of immediate harm, the decision, by Justice Armand Arabian, said there was no requirement "that the victim say, `I am afraid, please stop,' when it is the defendant who has created the circumstances that have so paralyzed the victim in fear and thereby submission."
The incident, Arabian wrote, was "an appalling and intolerable invasion of one's personal autonomy that in and of itself would reasonably cause one to react with fear."
In the Pennsylvania case the student entered a dorm room looking for a friend and found the friend's roommate, Robert Berkowitz, who asked the woman to stay. She agreed. He suggested that she sit on the bed. She refused and sat on the floor. He sat beside her, lifted her shirt and bra, "massaged her breasts" and tried unsuccessfully to have her perform oral sex on him. According to the court they both stood up. He locked the door, pushed her on the bed and had intercourse with her.
Afterward, the court recounted, Berkowitz said, "Wow, I guess we just got carried away," and she responded: "No, we didn't get carried away. You got carried away."
In her testimony the woman said Berkowitz had not orally threatened or restrained her in any manner. She testified, however, that she sought to leave the room and said "no" throughout the encounter.
But, the court noted, although she knew that the door could easily be unlocked from the inside, she never tried to leave. And, the court added, although her "no" was relevant to the issue of consent, it did not prove the forcible compulsion necessary for rape.
by CNB