Berkowitz was charged with Rape, a Felony 1 offense, and the conviction was reversed. Rape is defined as:
§ 3121. Rape
(a) Offense defined.--A person commits a felony of the first degree when he or she
engages in sexual intercourse with a complainant:
1. By forcible compulsion.
2. By threat of forcible compulsion that would prevent resistance by a person of
reasonable resolution.
* * * (Pennsylvania Statutes, Title 18)
Included in the Pennsylvania sex offenses are the offenses of Aggravated Indecent Assault, a Felony 2. and Sexual Assault, also a Felony 2. Aggravated Indecent Assault is defined as:
§ 3125. Aggravated indecent assault
Except as provided in sections 3121 (relating to rape)… a person who engages in
penetration, however slight, of the genitals or anus of a complainant with a part of the
person's body for any purpose other than good faith medical, hygienic or law enforcement
procedures commits aggravated indecent assault, a felony of the second degree, if:
1. the person does so without the complainant's consent;… .
* * * (Pennsylvania Statues, Title 18)
Sexual Assault is defined as:
§ 3124.1. Sexual assault
Except as provided in section 3121 (relating to rape) or 3123 (relating to involuntary
deviate sexual intercourse), a person commits a felony of the second degree when that
person engages in sexual intercourse or deviate sexual intercourse with a complainant
without the complainant's consent. (Pennsylvania Statutes, Title 18)
Because “forcible compulsion” was not present in this case, Berkowitz should have been charged with Aggravated Indecent Assault and Sexual Assault. This would have provided the prosecution with the chance for a felony conviction, but rather than a Felony 1 conviction, it would have been a Felony 2 conviction.
The Berkowitz case falls into the area of sex crimes, which, as shown above, can be either a misdemeanor or felony, depending on the facts of the case and the charges against the defendant. Typically jurisdiction of sex crimes falls on the state, and definition and penalties are outlined at the state level. Pennsylvania law has a “forcible compulsion” requirement in order to meet the criteria for rape as opposed to other sex crimes that may still involve penetration of the victim.
Berkowitz could not be re-tried in an attempt to convict him of Aggravated Indecent Assault or Indecent Assault, to do so would be allow Berkowitz to use Res Judicata and Collateral Estopple as a defense.
On an emotional level, it is easy to say, “No means no.” However, we must look at the Berkowitz case objectively. Based on the facts, Berkowitz should not have been charged with Rape, but rather Aggravated Indecent Assault, or at a minimum, Berkowitz could have been charged with Indecent Assault. Had the victim even as much as scratched Berkowitz, there may have been a slightly higher chance of a rape conviction. Emotionality of a crime obviously will lie with the victim, his/her family and often the community as well; however, if we are to maintain a fair a just society, we must look at a crime objectively. We cannot force a square peg into a round hole, and if we chip at the hole to make it fit, we are chipping away at the very things that makes this country what it is and affords us the freedoms that we have.
References
Commonwealth v. Fischer. No. 133, Philadelphia, 1998. Retrieved July 28, 2002, from the World Wide Web: http://dpg-law.com/opinions/pa-super/9812/6273-fischer.html.
Pennsylvania Consolidated Statutes, Crimes and Offenses, Title 18. Retrieved July 28, 2002, from the World Wide Web: http://www.students.haverford.edu/masar/documents/PARapeLaws.pdf