Commonwealth of Pennsylvania v. Robert A. Berkowitz

Facts

Defendant and the victim were both college sophomores at East Stroudsburg State University. On April 19, 1988, the victim planned to meet her boyfriend at the dormitory which Defendant also lived in. She drank a martini to “loosen up a bit.” When her boyfriend didn’t come, the victim went to a dorm that Defendant and Hassel shared. Hassel was not there, but Defendant was. The victim wrote a note for him that said she was drunk. She testified that although she had not felt any intoxicating effects, she wrote the note “for a laugh.”

Before the victim could leave defendant’s room, defendant asked her to stay and “hang out for a while.” She complied because she “had time to kill” and because she didn’t really know defendant and wanted to give him “a fair chance.” The victim sat on the floor, and according to the victim, defendant joined her and began kissing her. The victim said no, but defendant ignored her and started to fondle her. He then attempted to have her perform oral sex on him. The victim said no many times, but did not physically resist. Defendant got up to lock the door, and then put her down on the bed. They had sexual intercourse. She did not scream at any time because “it felt like a dream was happening or something.” The victim did softly say no to him.

Immediately after, defendant said, “Wow, I guess we just got carried away.” The victim responded, “no, we didn’t get carried away, you got carried away.” She quickly got dressed and left. Once downstairs, she started crying and contacted the police.

At trial, defendant testified that while the victim said no, he believed it to be passionate moaning. He was convicted of rape.