## Facts

- In April 1988, Robert A. Berkowitz and the complainant were students at East Stroudsburg State University.
- The complainant went to Berkowitz’s dorm room looking for a friend; finding the door unlocked, she entered and found Berkowitz inside.
- Berkowitz asked her to stay; she agreed and sat on the floor rather than the bed after refusing his request for a back rub because she did not trust him.
- Berkowitz moved next to her, lifted her shirt and bra, and massaged her breasts.
- Berkowitz unfastened his pants and attempted to put his penis in her mouth; the attempt was unsuccessful.
- Berkowitz locked the door, pushed her onto the bed, removed her undergarments from one leg, and penetrated her vaginally.
- The complainant testified she repeatedly said “no” and did not consent, but Berkowitz did not verbally threaten her, did not restrain her hands during penetration, and she did not scream, attempt to leave, or physically resist; the locked door could be unlocked from the inside.
- After the act, Berkowitz said, “I guess we just got carried away,” and the complainant responded that he had “got carried away.”

## Issues

1. Whether the evidence was sufficient to prove rape by “forcible compulsion” under 18 Pa. C.S. § 3121.
2. Whether evidence offered by the defense to suggest a motive to fabricate (tied to the complainant’s relationship and her boyfriend’s jealousy) was admissible or barred by Pennsylvania’s Rape Shield Law.
3. Whether, notwithstanding reversal of the rape conviction, the evidence supported the indecent-assault conviction and whether a new trial on indecent assault was required.

## Decision

- The Supreme Court affirmed reversal of the rape conviction and Berkowitz’s discharge on that count, holding the evidence did not establish “forcible compulsion.”
- The Court held the trial court properly excluded the proffered motive-to-fabricate evidence under the Rape Shield Law.
- The Court vacated the order granting a new trial on indecent assault and reinstated the jury’s indecent-assault verdict.

## Legal Principles

- “Forcible compulsion” for rape requires proof of force or threat of force beyond mere nonconsent; verbal refusal alone does not satisfy the statutory element.
- Whether forcible compulsion exists is assessed under the totality of the circumstances, including evidence of restraint, threats, or inability to resist.
- Evidence closely tied to a complainant’s past sexual conduct may be excluded under the Rape Shield Law even when offered to suggest motive to fabricate, if admission would undermine the law’s protective purpose.
- A defendant may be acquitted of rape for lack of forcible compulsion while still being convicted of indecent assault based on nonconsensual indecent contact.

## Conclusion

The court drew a clear statutory line between nonconsensual intercourse and rape by forcible compulsion, holding the record proved lack of consent but not the additional force or threats required for rape; it also applied the Rape Shield Law to exclude motive evidence intertwined with sexual history and reinstated the indecent-assault conviction.


Commonwealth v. Berkowitz, 641 A.2d 1161 (Pa. 1994)