Robert Berkowitz, the defendant, was convicted in the Court of Common Pleas, Monroe County, of rape and indecent assault and he appealed. The Superior Court, Philadelphia, reversed the rape conviction. The Pennsylvania Supreme Court affirmed the Superior Court’s reversal of the conviction. 

609 A.2d 1338 (Pa.Sup. 1992) PER CURIAM

In the spring of 1988, Robert Berkowitz and the victim were both college sophomores at East Stroudsburg State University, ages 20 and 19 years old, respectively. They had mutual friends and acquaintances. On April 19 of that year, the victim went to the appellant’s dormitory room. What transpired in that dorm room between the appellant and the victim thereafter is the subject of the instant appeal. 

During a one-day jury trial held on September 14, 1988, the victim gave the following account during direct examination by the Commonwealth. At roughly 2:00 on the afternoon of April 19, 1988, after attending two morning classes, the victim returned to her dormitory room. There, she drank a martini to “loosen up a little bit” before going to meet her boyfriend, with whom she had argued the night before. Roughly 10 minutes later she walked to her boyfriend’s dormitory lounge to meet him. He had not yet arrived. 

Having nothing else to do while she waited for her boyfriend, the victim walked up to Berkowitz’s room to look for Earl Hassel, Berkowitz’s roommate. She knocked on the door several times but received no answer. She therefore wrote a note to Mr. Hassel, which read, “Hi Earl, I’m drunk. That’s not why I came to see you. I haven’t seen you in a while. I’ll talk to you later, [Victim’s name].” She did so, although she had not felt any intoxicating effects from the martini, “for a laugh.” 

After the victim had knocked again, she tried the knob on Berkowitz’s door. Finding it open, she walked in. 

She saw someone lying on the bed with a pillow over his head, whom she thought to be Earl Hassel. After lifting the pillow from his head, she realized it was Berkowitz. She asked him which dresser was his roommate’s. He told her, and the victim left the note. 

QUESTIONS

1. Explain how the Court came to the conclusion that the Pennsylvania rape statute required extrinsic force. 

2. List all the facts relevant to deciding whether Robert Berkowitz’s actions satisfy the extrinsic force requirement. 

3. Assume you’re the prosecutor, and argue that Robert Berkowitz did use extrinsic force to achieve sexual penetration. 

4. Now, assume you’re the prosecutor, and argue that Robert Berkowitz did not use extrinsic force to achieve sexual penetration.