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The choice by the legislature to define the crime of indecent assault utilizing the phrase without the consent of the other and to not so define the crime of rape indicates a legislative intent that the term forcible compulsion under 18 Pa. Cons. Stat. § 3121, be interpreted as something more than a lack of consent. Penal statutes must be strictly construed to provide fair warning to the defendant of the nature of the proscribed conduct. 1 Pa. Cons. Stat. § 1928; 18 Pa. Cons. Stat. § 104.
The complainant, a female college student, left her class, went to her dormitory room where she drank a martini, and then went to a lounge to await her boyfriend. When her boyfriend failed to appear, she went to another dormitory to find a friend, Earl Hassel. She knocked on the door, but received no answer. She tried the doorknob and, finding it unlocked, entered the room and discovered a man sleeping on the bed. The complainant originally believed the man to be Hassel, but it turned out to be Hassel's roomate, Robert A. Berkowitz. Berkowitz asked her to stay for a while and she agreed. He requested a back-rub and she declined. He suggested that she sit on the bed, but she declined and sat on the floor. Berkowitz then moved to the floor beside her, lifted up her shirt and bra and massaged her breasts. He then unfastened his pants and unsuccessfully attempted to put his penis in her mouth. They both stood up, and he locked the door. He returned to push her onto the bed, and removed her undergarments from one leg. He then penetrated her vagina with his penis. After withdrawing and ejaculating on her stomach, he stated, "Wow, I guess we just got carried away," to which she responded, "No, we didn't get carried away, you got carried away." Berkowitz was arrested, tried and convicted of rape and indecent assault. Berkowitz sought review and the superior court reversed and dismissed the rape charge and remanded the indecent assault charge on the grounds that the trial court erred in excluding testimony under the Rape Shield Law, 18 Pa. Cons. Stat. § 3104. The Commonwealth of Pennsylvania sought review of the reversal.
Was the reversal of the rape charge proper?
The court affirmed the reversal and dismissal of the rape charge, but reversed the holding on the indecent assault. The court held that the victim's testimony did not establish that Berkowitz forcibly compelled her to engage in sexual intercourse, that the superior court erred in its application of the Rape Shield Law, 18 Pa. Cons. Stat. § 3104, and that there was sufficient evidence to support a conviction of indecent assault.