Actus Reus Cont.

Redefining “Force”

Commonwealth v. Berkowitz

415 Pa. Super. 505 (1992).

Charged and convicted with forcible rape. Appeals.


Was the evidence strong enough to show “forcible compulsion”?


Global Rule

Rape in this state was defined as sexual intercourse either by:

  1. Forcible compulsion;
  2. Threat of forcible compulsion to where a reasonable person would not resist;
  3. Unconscious
  4. Mentally deranged, victim can’t provide consent.
Issue Rule

Forcible compulsion can include physical force or moral, psychological, or intellectual force to compel someone to engage in the act against their will. This can be determined by considering the not exclusive list of the following factors:

  1. Age differences
  2. Mental and physical conditions
  3. Atmosphere and setting
  4. Positions of authority
  5. Custody over the victim
  6. Victim duress


Evidence was insufficient, reversed and remanded for a new trial with a lessor charge.


Really feels like a case of he said, she said. Both the accused and the victim are college sophomores. They did not known each other but had mutual friends, she had been to the accused’s apartment and dorm room several times. She went there to see his roommate while she was waiting for her boyfriend. The accused asked her to stay and she did so, sitting on the floor. After talking for a while, he approached her. Although she said “no”, she did not attempt to leave. She was surprised by how sudden everything happened and he was under the impression that she had encouraged him. Thus, “he said, she said.”


After reviewing the factors, there was no age discrepancy, no authority, no custody questions, no mental conditions, and the atmosphere was fine.

The court also pointed to the distinction between consent and forcible compulsion. Here, they said that it is distinct and that although signs of resistance do not need to be shown, there needs to be an adequate threat. Because there was no threat, the lack of consent alone was not sufficient to have a rape conviction.


This rule outlines an attempt the courts have tried to control the force requirement without putting the victim in danger.

Additional Notes

The defendant argues that there is “reluctant submission” which does not equal force or threat of force.

There are three possible ways to show rape from this case:

  1. Mental coercion
    • No indication in this case because no authority, no differences in age, etc.
  2. Threat of force
    • No indication here because he did not say anything threatening.
  3. Application of force
    • The court here said no, because he did not do anything more forceful than what the act itself entails.
    • The prosecution argued yes, because he locked the door, was on top of her, and continued despite her “no”.

This is a common law approach. Under the MPC, rape requires force: gross sexual imposition requires threat. Under the MPC, he would not have been guilty because there wasn’t even a threat involved.

Abandoning “Force”: Rape as Non-Consensual Sexual Intercourse (Rape Reform)

State of New Jersey in the Interest of M.T.S.

129 N.J. 422 (1992).

Juvenile convicted in trial court. Reversed in appellate. State appeals.


“Whether the element of “physical force” is met simply by an act of non-consensual penetration involving no more force than necessary to accomplish that result.” In other words, is non-consent enough to establish force?


Global Rule

Second-degree (no additional aggregating factors )sexual assault requires:

  1. Intercourse with
  2. physical force or coercion
Issue Rule

Physical force is defined as “any amount of force against another person in the absence of what a reasonable person would believe….” to be consent.


There was no consent, additional force is not necessary. Appellate court reversed and trial court’s ruling stands.


There was disputed evidence, however, we will only consider what the court took to be true. The accused lived with the victim and her family, he was 17 she was 15. They knew each other well and he would tease her a lot. He made a “surprise visit” to her room, where they began to kiss with her consent. However, she did not consent to sexual intercourse which occurred. There was no additional violence or threat of force.

Defense wanted an expansive definition of physical force to include force beyond consent.

State wanted a definition of force to be limited to acting without consent.


The court begins by outlining the weaknesses of the old requirement of resistance which resulted in a lot of rape reform laws. Thus, this court looks to the intent of the legislature when they reformed the law. Although the definition of the terms were not defined, the court determined that the intent of the legislature was to remove any element that was not in the interest of the rape victim. That means that lack of consent would be sufficient to determine that the “force” element was met.

Because the trial court determined that consent was not given either through words or actions, the original conviction stands.


Many jurisdictions are attempting to do away with the force requirement by saying “as long as there is no consent, any action after that is considered forceful.”

Additional Notes

The term force was not defined in the statute so we need to look at the “statutory construction tools” to determine the meaning.

Plain Language

Not clear. Nobody can determine what the terms mean by definition

Legislative Intent
  1. Common Law History
    • Historically, really relied on the resistance of the victim. They say that this has been seen as outdated, because of reform efforts.
  2. Reform Efforts
    • They said that they don’t want to focus on the victim’s actions at all. The burden is on the defendant to show that there was consent.
  3. Other Statutes
    • The language saying that “resistance is necessary” is missing, on purpose.

So, the new rule is that the plaintiff needs to show that there was sexual penetration without 1) affirmative and 2) freely-given permission of the victim.

Permission can be determined either by words or actions. However, there was no affirmative action to show that there was permission and the defendant would be guilty. Passive agreement is not permission.

Under this rule, Berkowitz would also have been guilty.


Script: What model should we use

  1. Yes model
    • Requires a “yes” before any act.
  2. No model
    • “No” means “no”, but absence might mean “yes”.
  3. Negotiation model
    • Affirmative discussion and exchange of views prior to any act.

Mens Rea

Commonwealth v. Lopez

433 Mass. 722 (2001).

Lopez was convicted of rape, wanted but was refused a mistake of fact instruction and appealed.


Should the court adopt a mistake of fact rule?


Global Rule

Rape is:

  1. Sexual intercourse
  2. By force
  3. Without consent
Issue Rule

“Because the rape statue does not require proof of a defendant’s knowledge of the victim’s lack of consent or intent to engage in nonconsensual intercourse as a material element of the offense, a mistake as to that consent cannot, therefore, negate a mental state required for commission of the prohibited conduct.”

In other words, there is no mens rea element, so there can be no mistake of fact defense.


Not wrong to withhold instruction. Affirmed.


Defendant raped the victim. There was evidence of resistance and injury from the resistance. He claims a mistake of fact (he believed she had consented).


The reason why there can be no mistake of fact defense used in all cases is because there is no mens rea element of knowledge of the lack of consent (general intent crime). This means that a mistake could occur and the defense would have no mistake of fact defense.

The courts do admit that they are in the minority of opinion across all jurisdictions. So, they do say that it could possibly apply in some circumstances, but the facts of this case don’t make it reasonable to even go down that path.

Additional Notes

It is important to know that there are very different stories in the accounts here. He claims that it was consensual and she says that it was not.

So, he wants a mistake of fact instruction saying that he did not know that she had no consented. If this was the case, he would be found not guilty.

So simply, he is saying, “even if there was no actual consent, he believed that there was and he would not be guilty.”

We need to determine if this is a specific intent or general intent to determine if the rule applies:

  • Specific Intent: Any mistake that negates element can be defense
  • General Intent: Mistake must be genuinely held but also must be reasonable under the circumstances

This is a general intent crime because there is no mens rea needed for lack of consent, so any reasonable mistake does not apply.

Mistake of fact may only apply in gray area cases, meaning when it could have gone either way. When there is such a disparity in the accounts, it’s evident that one party is lying.

In the MPC, you can use a mistake of fact defense if it negates the element. For instance, if the element says knowing, all the defendant needs to prove is that he acted without knowing.


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