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Commonwealth v. Berkowitz | 609 A.2d 1338 (1992)
Today, there exists a moral consensus that no means no with respect to consenting to have sex. But has that always been true from a legal perspective? The Pennsylvania Superior Court addressed this issue in Commonwealth versus Berkowitz.
College student Robert Berkowitz was lying in bed in his dorm room, with a pillow covering his head, when a female student entered the room looking for his roommate. Mistakenly believing Berkowitz was the roommate, she pulled the pillow off his head. When she realized Berkowitz wasn’t the roommate, she left the roommate a note. Berkowitz then asked her to hang out with him, and she agreed.
Berkowitz requested a backrub, but she declined. He asked her to sit on his bed. Instead, she sat on the floor, and the two conversed. Berkowitz eventually got off the bed. He leaned on her and eventually straddled her as he kissed her. She responded by saying that she had to go meet her boyfriend. Undeterred, Berkowitz lifted up her shirt and bra and fondled her breasts. She repeatedly said no. Berkowitz not only continued fondling and kissing her, he unzipped his pants and attempted to have her perform oral sex. She didn’t comply. She didn’t physically resist, but said in a scolding manner, quote, “No, I gotta go, let me go,” unquote. They rose to their feet, but Berkowitz locked the door. She didn’t try to unlock it.
Berkowitz put her on the bed. In her words, it wasn’t a push or a shove, but it also wasn’t a slow romantic movement. It was something in between. He straddled her while he removed her sweatpants and her underwear. She didn’t physically resist or scream but lay still. He then put his penis inside her vagina. She repeatedly said no as he penetrated her, but did so in a soft, moaning manner. After Berkowitz finished, she got dressed, hurried out of the dorm, and ran to her boyfriend, who called the police.
Berkowitz was charged with rape and the lesser offense of indecent assault. He pleaded not guilty and had a jury trial. The jury convicted him of both offenses, and he was sentenced to prison.
Berkowitz appealed to the Pennsylvania Superior Court.
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