Commonwealth v. Berkowitz

Facts

The complainant, a college student, left her class, went to her dormitory room and drank a martini, then went to a lounge to wait for her boyfriend. When he did not come, she went to another dormitory to find a friend, Earl Hassel. No one answered her knock. She found the door unlocked, went in and saw a man asleep on the bed. She first thought he was Hassel, but he was Hassel’s roommate, Berkowitz. Berkowitz asked her to stay, and she agreed. He asked for a back-rub, and she said no. He suggested she sit on the bed, and she declined and sat on the floor. Berkowitz then moved to the floor beside her, lifted her shirt and bra and massaged her breasts. He unfastened his pants and tried unsuccessfully to put his penis in her mouth. They stood up, and he locked the door. He pushed her onto the bed, removed her undergarments from one leg and penetrated her vagina with his penis. Afterward he said they had gotten carried away, and she answered that he had. At trial she said she told him “no” throughout and wanted to leave. The record showed that the door could be unlocked easily from the inside, that she knew this, and that she never tried it. She also agreed that his hands were not restraining her during penetration and that the weight of his body was the only force applied.

Issues

1. Does a complainant’s testimony that she said “no” throughout, with no physical force, threat of physical force or psychological coercion shown, prove the “forcible compulsion” element of rape?
2. Does the Rape Shield Law bar evidence that the complainant and her boyfriend argued over her alleged infidelity, offered to show she accused the defendant out of fear of the boyfriend’s jealousy?
3. Was the evidence sufficient to support a conviction of indecent assault, which requires contact without the other person’s consent?

Holding

Even if the complainant was believed, her testimony failed to establish forcible compulsion, so the rape conviction could not stand. The Rape Shield Law properly kept out the infidelity-argument evidence, and the evidence was sufficient for indecent assault.