Robert Berkowitz (defendant) was charged with and convicted of rape in the Court of Common Pleas, Monroe County, of rape. He was sentenced to one to four years. The intermediate court of appeals (The Pennsylvania Superior Court) affirmed the conviction. The Pennsylvania Supreme Court, in a unanimous decision ruled that the evidence at trial didn’t support finding of “forcible compulsion.” But—the court found that the evidence did support a finding of the lesser offense of “indecent assault.” Indecent assault required proof that Berkowitz engaged in “indecent contact—any touching of the sexual or other intimate parts of another person— without the consent of the other person. [Indecent assault is a misdemeanor. Berkowitz was sentenced to six months to a year and was granted parole after serving the minimum six months.]

Facts

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 Berkowitz’s dormitory room. What transpired in that dorm room between Berkowitz and the victim thereafter is the subject of the instant appeal.....

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 Berkowitz’s lawyer, and argue that he didn’t use extrinsic force to achieve sexual penetration.

5. Was Superior Court “right” to reverse Robert Berkowitz’s rape conviction? Explain your answer.

6. Did the complainant share no/little, some, equal, most of the responsibility for the sexual intercourse? The indecent sexual contact? Defend your answers.