The Myth of Choice_ Personal Responsibility in a World of Limits - Kent Greenfield [34]
On the day of the incident, in the early afternoon, the woman again showed up at Berkowitz’s room after she had been drinking. He was on his bed, napping. After he awoke, she told him that she had come to see his roommate, who was also a friend of hers. The woman left a note for the roommate, and as she was about to leave Berkowitz asked if she would “hang out for a while.” She decided to stay for a few moments. He invited her to sit on the bed and to give him a back rub, but she declined, saying she did not trust him. She instead sat on the floor, and they had a conversation about her problems with a boyfriend.
After a few minutes, Berkowitz joined the woman on the floor and, according to the woman, “pushed” or “leaned” her backwards with his body, straddled her, and started kissing her. The woman said, “Look, I gotta go. I’m going to meet [my boyfriend].” Nevertheless, Berkowitz lifted her shirt and bra and began fondling her, and the woman said, “No.” Despite the woman’s continuing protests that she had to go and her persistence in voicing “no,” Berkowitz continued to fondle and kiss her. He also undid his pants and tried to put his penis into her mouth. According to the court, “The victim did not physically resist, but rather continued to verbally protest . . . in a ‘scolding’ manner.”13
Berkowitz “disregarded the victim’s continual complaints” and later claimed that he did so because the woman was responding passionately to his kisses. As the court explained, “He conceded that she was continually ‘whispering . . . “no”s,’ but claimed that she did so while ‘amorously . . . passionately’ moaning. In effect, he took such protests to be thinly veiled acts of encouragement.” He then locked the door to the room and, according to the woman, “put me down on the bed . . . He didn’t throw me on the bed . . . It wasn’t slow like a romantic thing, but it wasn’t a fast shove either.” Once the woman was on the bed, Berkowitz straddled her again, took off her pants and underwear, and entered her. At no time did the woman physically resist or scream out, but she did say “‘no, no’ to him softly in a moaning kind of way . . . because it was just so scary.” Berkowitz remained inside her for approximately thirty seconds, at which time he withdrew and ejaculated.
The woman quickly dressed and left to meet her boyfriend, who, upon learning what had happened, called the police. A jury convicted Berkowitz of rape, and he was sentenced to a prison term of one to four years.
The question on appeal was whether what had occurred was rape. At the time in Pennsylvania, the statutory definition of rape did not hinge on consent but on force. Rape was “sexual intercourse with another person not one’s spouse”—note the spousal exception—“by forcible compulsion . . . or by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution.” For the Pennsylvania Supreme Court, since the question under the statute was not one of consent but of force, the question in the Berkowitz case was whether he had forced the woman to have sex with him. Ultimately, the court held that no rape had occurred because Berkowitz had not used force. The court was swayed by the evidence that she had not physically resisted, that he had not physically prevented her from leaving, and that even though the door was locked the woman “was aware” that the “door could be unlocked easily from the inside” and that “she never attempted to go to the door or unlock it.” The fact that the woman continually said “no” throughout the encounter was, according to the court, “relevant to the issue of consent,” but “not relevant to the issue of force.”14
This decision caused wide controversy. Women’s groups protested; court watchers