I believe the two standards that the jurisdiction uses to determine the occurrence of rape case are the right standards. The first standard Force requiring some act in addition to the physical effort required to accomplish the sexual penetration is useful where the victim resists the rape act and uses some effort to discourage the rapist. Sexual penetration may, therefore, results from the excessive force that the rapist uses to overcome the victim. In the event where the victim cannot fight anymore, the jurisdiction can use this first standard as a test for determining a rape occurred.
The second standard is also a proper way of determination of whether a rape occurred. In some instances, the victim may be seduced into sexual act through some other efforts such as fondling as it was the case with Berkowitz. Although the victim may not be willing to get into sexual contact, they could eventually get into it as a result of losing control of their feelings due to the effects of such actions. However, their unwillingness could be shown by some actions to discourage or to stop the rapist. When such happens without initial consent at the normal state of mind, the jurisdiction can use this as a valuable tool for determination of the occurrence of rape.
Regarding the court decision of reversing the conviction, I fully support the courts decision. Prior to the sexual act that the complainant claims to be rape, the complainant had acted in a manner that suggests that she was after something. Asking the victim to see the size of his penis could have translated that she wanted sexual contact with him. Although when she was asked by the complaint to come over to his room and see his penis and she declined, she later came while drunk. Furthermore, she came twice while drunk. As, the defendants put it, the second time that she visited his house, she spread her legs and asked him to see his penis. This could have triggered his sexual urge that could have resulted in their sexual contact the next time the victim came to his room.
During the interrogation with the judges, the victim accepted that Berkowitz initiated the physical contact, but she did not resist at all. This could have given the defendant a chance to confirm all that he has been suspecting that she wanted to have sexual contact with him. Also, even if she kept saying no Berkowitz reveals that she passionately returned his kisses and whispered nos affectionately. This could have encouraged him to go on, claims that the complainant does not deny. She also confirms that Berkowitz did not throw her to bed, but instead he put her to bed although not in a romantic manner.
Also, the defendant discloses that she helped him remove her clothes; the victim was asked, and she responds that it was possible. While Berkowitz went to close the door, the victim did not do any effort to stop him or in attempt to leave. She confirms that the door could be easily opened from inside yet she did not even try to open it. She also didnt scream, and she also confirms that Berkowitz never threatened her at any one time during the sexual contact. More so, she tells the jury that the defendant's hands were not restricting her in any manner, and she also affirms that it was possible when the defendant started untying her clothes, she did nothing to discourage or stop him. According to her testimony, there was no any evidence that she was compelled by threats of physical force or psychological force as required to determine the case as rape hence the courts decision to reverse the conviction was properly determined.
Friesen, J. (1996). State constitutional law: Litigating individual rights, claims, and defenses. Charlottesville, VA: Michie.
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