Court decisions in rape cases highlight differences in state statutes.

Back-to-back state supreme court decisions in California and Pennsylvania have highlighted how differently rape is defined in courts across the United States.

Some states require proof of threatened or actual force before a sexual incident can be legally deemed a rape. Other states have changed their laws over the past 15 years, noting that force by an instigator need not be proved; a victim's lack of resistance or the absence of physical force does not mean she consented to sexual intercourse.

In California, the state supreme court reversed a lower court May 23 and found that physical force by an attacker and verbal or physical resistance from his victim are not necessary elements in securing a rape conviction. (People v. Iniguez, 30 Cal. Rptr. 2d 258 (1994).)

"There is no requirement that the victim say, 'I am afraid, please stop,' when it is the defendant who has created the circumstances that have so paralyzed the victim in fear and thereby submission," said Justic Armand Arabian, writing for the unanimous court.

In Iniguez, the victim was sleeping in a friend's living room on the eve of her wedding when she was raped by her friend's fiance. She testified that she lay silently and did not resist the attack because she was afraid.

California amended its statute in 1980 to take into account the theory that many rape victims become "frozen" in fear and are unable to resist.

In Pennsylvania, the state supreme court found May 27 that "forcible compulsion" must be proved to obtain a rape conviction. (commonwealth v. Berkowitz, 641 A.2d 1161 (Pa. 1994).)

In that case, East Stroudsburg University student Robert Berkowtiz was convicted of rape and indecent assault involving a female student who entered his dormitory room in search of Berkowitz's roommate. The victim testified that she tried to leave Berkowtiz's room and that she said no during the subsequent sexual encounter. But she also testified that he did not threaten or restrain her and that the weight of his body on top of her was the only force applied.

"[The victim's testimony] simply fails to establish that [the defendant] forcibly compelled her to engage in sexual intercourse," the Pennsylvania high court wrote. The court reversed Berkowitz's felony rape conviction and reinstated the indecent assault conviction, which is a misdemeanor.

"The rape statutes have not been reexamined in Pennsylvania for the past 20 years," said Kathryn Geller Myers, speaking for the Pennsylvania Coalition Against Rape. "I guess the politicians figured this [the current statute] was a heck of a lot better than the one used before the 1970s."

At that time, most rape laws required that a victim have corroboration of the attack from a third party, which was almost impossible to get.

"We've come a long way since then because we've abolished the corroboration requirement, but there is still such a long way to go," Myers said. She added that about half the states across the country still have a forcible compulsion provision on the books.

The Pennsylvania legislature is examining two bills that would change the state's sexual assault laws. One would clearly state that forcible compulsion is not a neccessary element of rape. The second bill would reform the entire sexcrime code. The charge of rape would be eliminated and degrees of sexual assault, all of them felonies, would be created. The highest degree of sexual assault would still contain the forcible compulsion element. No action on the legislation will likely be taken until the fall, Myers said.

"The danger is the message this sends to the communities in the states about what is legally acceptable and what is not," said Kata Issari, president of the National Coalition on Sexual Assault. "It's startling that there is that much difference in the perceptions of the legislators and judges--the people that many look to as authorities. Clearly they aren't authorities on sexual assault and violence against women."