Commonwealth v. Mlinarich

SPAETH, President Judge,

dissenting:

A majority of the court today holds that the term “forcible compulsion” contained in the Crimes Code definitions of rape and involuntary deviate sexual intercourse, 18 Pa.C.S. §§ 3121, 3123, means “physical compulsion or violence.” Proceeding from the same legislative history that the majority has analyzed, I am led to quite a different conclusion: By the term “physical compulsion” the General Assembly meant “compulsion by physical, moral, or intellectual means or by the exigencies of the circumstances.” That we begin at the same point and end so far apart suggests not so much the difficulty issue, or its importance, neither of which may be discounted, as a fundamental clash over how the law is to regard the crime of rape and its victims. I regret that we have been unable to provide a unified response to the question before us. I hope, however, that in the several opinions filed today we have at least provided the basis for a debate that will resolve the question.

Appellant was convicted by a jury on one count of rape, two counts of attempted rape, two counts of involuntary deviate sexual intercourse, two counts of indecent exposure, five counts of corrupting the morals of a minor, and five counts of endangering the welfare of children. The trial court vacated the convictions on the five counts of endangering the welfare of children, but otherwise denied appellant’s motion in arrest of judgment or for new trial. Following the imposition of sentence, appellant took this appeal. He raises four issues: 1) that the evidence was insufficient; 2) that the trial court’s instruction to the jury was inadequate; 3) that the convictions of indecent exposure should merge with the convictions of involuntary deviate sexual intercourse; and 4) that the complainant was not competent to testify.

Appellant’s argument that the evidence was insufficient requires us to consider the meaning of the term “forcible compulsion” as used in Section 3121 of the Crimes Code, 18 Pa.C.S. § 3121, which defines the crime of rape, and Section 3123 of the Crimes Code, 18 Pa.C.S. § 3123, which defines the crime of involuntary deviate sexual intercourse. As I have said, I should hold that “forcible compulsion” means “compulsion by physical, moral, or intellectual means or by the exigencies of the circumstances.” By this standard, the evidence was sufficient. Nevertheless, I find that the trial court’s instruction to the jury was inadequate. I should therefore vacate the judgments of sentence for rape, attempted rape, and involuntary deviate sexual intercourse, and remand for a new trial on those charges. This conclusion makes it unnecessary for me to reach appellant’s merger argument. His argument that the complainant was not competent to testify is without merit.

Appellant has not challenged his convictions of indecent exposure and corrupting the morals of a minor. However, on the convictions of indecent exposure, and on four of the five counts charging appellant with corrupting the morals of a minor, suspended sentences were imposed. I should vacate the suspended sentences as illegal sentences.

In May 1981 the complainant was living in Vintondale, Cambria County, in one half of a double house with her older brother, Gary, and his wife and child. The complainant’s father and her other siblings lived in the other half of the double house. When a ring belonging to Gary could not be found, Gary asked the complainant if she had taken it, and she admitted that she had, and had lost it. To teach the complainant a lesson, criminal charges were filed against her. Gary testified that his intent was to “put her in juvenile for a couple days and then I would drop the charges to see what she really did with it.” N.T. 1/21/82, 7. Consequently, on May 23 the complainant was committed by court order to the custody of the Cambria County Detention Home.

Appellant lived two doors from the house of the complainant’s father, with his wife, aged mother, and sister. Appellant was unemployed. Appellant’s wife worked as a nurse’s aide, and the complainant had done housework for her. Appellant and his wife had known the complainant’s father for about six years, and when the complainant was committed to the detention home, appellant’s wife suggested that the complainant live with her and appellant. The complainant’s father thought that this was a good idea, and on May 26, after a juvenile hearing, the complainant was released into the custody of appellant’s wife, pending further court proceedings.

The complainant celebrated her fourteenth birthday on May 28, 1981, at appellant’s home. She testified that on that evening appellant began to fondle her and that she told him that he should not do that. N.T. 1/21/82, 143-46. She did not report this incident to appellant’s wife, being afraid that she would speak to appellant about it and he would get angry. N.T. 1/21/82, 147. The complainant testified that this sort of incident was repeated “[a] couple times a week”, N.T. 1/21/82, 147, and that when she told appellant that she did not want him to touch her and would cry, he would stop, N.T. 1/21/82, 150.

The information charges that on or about June 15, 19, and 26, 1981, appellant engaged in sexual intercourse with the complainant by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution. The complainant testified that appellant’s wife was never home during the incidents in question. She said that the first incident began with appellant asking her to take her clothes off. When she did not remove her bra and underwear, “he [appellant] said, ‘Take them off.’ I said, ‘No.’ He said, ‘Yes, or he would send me back to the DH [detention home]. So, I took them off. Then, he took his clothes off.” N.T. 1/21/82, 156. After they had their clothes off, the complainant told appellant she did not want to do anything, and cried, but “[h]e said, ‘You did it before, you can do it now’ ”, and that “[i]f I didn’t do it, he would send me back.” N.T. 1/21/82, 155. Appellant then got on the sofa bed next to the complainant and tried to penetrate her. Since appellant does not challenge the sufficiency of the evidence of intercourse, I shall not describe those aspects of the complainant’s testimony except to note that she testified that she felt pain and was “screaming and hollering” and “crying.” N.T. 1/21/82, 157. The second and third incidents happened in much the same way, with the complainant crying and saying that she did not want to participate because she did not think that it was right, and with appellant threatening to send her back to the detention home. N.T. 1/21/82, 159-64. The complainant testified that she was afraid of going back to the detention home. N.T. 1/21/82, 159.

The information also charges that on or about June 29 and July 1, 1981, appellant engaged in involuntary deviate sexual intercourse with the complainant. The complainant testified that during the first incident appellant kept pushing her head down to his penis and that she was struggling, crying and yelling at him to quit it. N.T. 1/21/82, 167-68. She told appellant that she was going to tell her father and he replied that “[h]e would send me to the DH”, and that “[h]e wouldn’t let my dad see me because he had me now.” N.T. 1/21/82, 168, 169. The second incident was similar.

On July 2, 1981, the complainant testified, appellant “asked me to do that again, and I wouldn’t. So, he started yelling at me and calling me names.” N.T. 1/21/82, 171. She said that she was leaving and went to her father’s home and told him what had happened. N.T. 1/21/82, 172.

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Appellant argues that he must be discharged because the foregoing evidence was insufficient to prove the degree of compulsion that must be proved before one may be convicted of rape. Specifically, he argues that “although the courts no longer require [proof of] actual physical violence they do require [proof] that the actions of the defendant create[d] a reasonable fear of physical harm.” Brief for Appellant at 18-19. In appellant’s view, his threat to send the complainant back to the detention home if she did not submit to his demands “[did] not give rise to the level of force or threat contemplated by the courts____ [citing cases].” Id. at 19.

In considering this argument, I start with the observation that it misstates the issue we must decide. The issue is not what degree of compulsion “the courts” “require” or “contemplate[ ]”. To be sure, that used to be the issue, for rape used to be a common law crime. However, the Crimes Code has abolished common law crimes. 18 Pa.C.S. § 107(b). The issue we must decide, therefore, is not whether the evidence was sufficient to prove rape at common law, that is, rape as defined by the courts, but whether the evidence was sufficient to prove rape as defined by the legislature, in the Crimes Code.

The legislature has defined rape as follows:

A person commits [rape] a felony of the first degree when he engages in sexual intercourse with another person not his spouse:

(1) by forcible compulsion;

(2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution;

(3) who is unconscious; or

(4) who is so mentally deranged that such person is incapable of consent.

18 Pa.C.S. § 3121.

Appellant concedes—by not arguing otherwise—that the evidence was sufficient to prove that he “engage[d] in sexual intercourse with another person not his spouse.” 18 Pa.C.S. § 3121. Therefore, we are left with two questions: First, was the jury entitled to find from the evidence that appellant’s threat to send the complainant back to the detention home if she did not submit to his demands constituted a “threat of forcible compulsion”. 18 Pa.C.S. § 3121(2). And second, if so, was the jury further entitled to find that the threat was such as “would prevent resistence by a person of reasonable resolution”? Id. Of course, in considering what the jury was entitled to find, we must assume that the jury regarded the evidence, and all reasonable inferences from it, in the light most favorable to the Commonwealth. Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975 (1982), cert. denied Pennsylvania v. Lovette, 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1025 (1983).

It is frequently said that the words of a statute are to be “given their plain meaning,” or are to be “understood according to their common and approved usage.” See, e.g., Commonwealth v. Stanley, 498 Pa. 326, 446 A.2d 583 (1982); 1 Pa.C.S. § 1903(a). These maxims, however, will not yield the meaning of the phrase, “threat of forcible compulsion,” for “force” has more than one plain, or common and approved, meaning. Webster’s Third New International Dictionary (1968) provides eleven definitions of “force,” some of these being subdivided. The first seven are as follows:

2 force /“/ vb -ed/-ing/-s [ME forcen, fr. MF forder; forcer to attack, rape, compel, fr. (assumed) VL fortiare, fr. L fortis strong] vt 1: to do violence to; esp : rape <a maiden forced by the intruder > 2 : to constrain or compel by physical, moral, or intellectual means or by the exigencies of circumstances <forced by injuries to stay at home> < hunger forced him to forget his scruples > <such evidence ~s conviction on the mind> < financial weakness ~s many small businesses to the wall> 3 : to make, cause, make to be, or accomplish through natural or logical necessity <~s the diameters to be equal —Josiah Royce> 4 a : to press, drive, attain to, or effect as indicated against resistance or inertia by some positive compelling force or action < your way through > < much of the previously unobtainable oil is forced to the surface —Amer. Guide Series: Pa.> < basic problems forced on us by the age in which we live —J.B. Conant> b : to press, impose, or thrust urgently, importunately, inexorably <he forced his personality upon his little world by organizing an army —L.C. Powys > < "his attentions on a woman > c : to drive (as warm air) through or into a duct or channel by some impelling force (as a fan) < The caulking compound into the crevices > 5 : to achieve or win by strength in struggle or violence: a : to win one’s way into : storm successfully : enter in attack < ~a castle > b : to effect a passage through by overcoming defenses <forced the mountain passes —O.L. Spaulding > c : to break open or through < a lock> < eventually the gate was forced > 6 a : to raise, accelerate, or heighten to the utmost <forcing the pace>; sometimes : to intensify the action and pressure in (as a game) < forced the game by a series of brilliant plays > b : to give forth, emit, produce only with unnatural or unwilling effort, not freely, spontaneously <the laughter was forced and unnatural —Sherwood Anderson > c : to wrench, strain, use with marked unnaturalness and lack of ease : press to an unusual use, past a usual limit, or into an unusual meaning or interpretation < to 7 to dislocate if necessary, language into his meaning —T.S. Eliot > <a forced interpretation of the passage > 7 a : to hasten the speed, growth, progress, developing, or maturing of (as through artificial means, maximum effort, close care, or individual attention) <a forced march > < children forced into early maturity by heavy responsibilities > b : to bring (plants or their wanted parts, as flowers or fruit) to maturity out of the normal season (as by the use of heat and special lighting) <forcing lilies for the Easter trade >

Id. at 887.

As one considers the range and tone of these several definitions it becomes evident that appellant’s threat to send the complainant back to the detention home if she did not submit to his demands might, or might not, have been a “threat of forcible compulsion.” It was not such a threat if “forcible” is to be considered as limited to meaning “to do violence to”; it might have been such a threat if “forcible” is to be construed as meaning “to constrain or compel by physical, moral, or intellectual means or by the exigencies of the circumstances,” or as meaning “to press, impose, or thrust urgently, importunately, inexorably.”

The same possibility of reaching conflicting conclusions— “forcible compulsion” or no “forcible compulsion”—becomes evident upon examining the synonyms of “force.” As the editors of Webster’s observe, in commenting on these synonyms: “FORCE is a general term indicating use of strength, power, weight, stress, duress in overcoming resistance.” Appellant did not threaten “to do violence to” the complainant in the same way as often occurs in rape cases—for example, he made no threat to kill or beat her. However, the jury was entitled to find, if not a threat of “violence”, then a threat of some sort of application of “strength”; for the complainant did not want to return to the detention home and therefore in some way would have had to have been “forced” to return. The jury was also entitled to find that appellant had used the “power” and “weight” of his authority over the complainant, and had subjected her to “stress” and “duress”, in order to overcome her resistance to his demands.

Our problem, therefore, is, not to choose the “plain meaning” of the phrase, “threat of forcible compulsion,” but, rather, to decide which of several plain meanings the legislature had in mind when it used the phrase in enacting the Crimes Code. In resolving this problem, it will be helpful to examine the several sources of the Crimes Code, more specifically, of the Code’s definition of the crime of rape. Three sources in particular may be identified: prior law (both common law and statutory); the Model Penal Code, Proposed Official Draft, 1962; and the Proposed Crimes Code, embodying the recommendations of the Joint State Government Commission after consultation with the Pennsylvania Bar Association. To make comparison easy, Section 721 of The Penal Code of 1939, Act of June 24, 1939, P.L. 872, § 721, as amended, Special Sess. No. 3, May 12, 1966, P.L. 84, § 1, 18 P.S. § 4721; Section 213.1 of the Model Penal Code; Section 1201 of the Proposed Crimes Code; and Section 3121 of the Crimes Code, are set out in the footnote.¹

As one works one’s way through a comparison of these several sources, it becomes apparent that in enacting the Crimes Code, the legislature selected some aspects of the sources, while rejecting other aspects. The question therefore arises whether an analysis of this process of selection and rejection will disclose how the legislature intended the phrase, “threat of forcible compulsion,” to be understood.

Sometimes the differences between the Crimes Code and its sources are a matter of style rather than substance. For example: The Penal Code had used the phrase, “Whoever has unlawful carnal knowledge of a woman ...” The Model Penal Code and Proposed Crimes Code both provided, “A male who has sexual intercourse with a female not his wife____” In enacting the Crimes Code, the legislature selected the more modern language, “sexual intercourse,” and the more abstract language, “person” instead of “male”, and “not his spouse” instead of “female not his wife.” Certainly the first of these selections was stylistic only and the others also seem stylistic only. Although the Penal Code did not explicitly exclude the situation where a woman was forced to submit to sexual intercourse by her husband, probably exclusion was implied by the adjective “unlawful,” before the phrase “carnal knowledge of a woman;” and cases holding that the element of carnal knowledge was proved by penetration, however slight, assumed penetration of the vagina, see, e.g., Commonwealth v. Green, 210 Pa.Super. 482, 233 A.2d 921 (1967), which is to say that a “person” not a “male” could not commit rape.

It is fair to say that such changes in style disclose nothing about the legislature’s intent—except the intent to express itself in language it thought more acceptable, and I mention the changes only preliminarily, and, so to speak, to get them out of the way.

Turning then to a substantive comparison of the Crimes Code and its sources, initially it may be noted that in several respects the legislature retained, or carried forward, the common law, at least in main part. Thus, at common law “carnal knowledge” had been interpreted to require only penetration, however slight; emission was not required. See, e.g., Commonwealth v. Green, supra. The Model Penal Code, the Proposed Crimes Code, and the Crimes Code as enacted, all retained this aspect of the common law. At common law the requisite force could be constructive, or implied, as, for example, if the victim were asleep or unconscious, or rendered insensible by drugs or intoxicating drinks, or incapable of rational consent because underage or insane. See, e.g., Commonwealth v. Stephens, 143 Pa.Super. 394, 17 A.2d 919 (1941). Again, the Model Penal Code, the Proposed Crimes Code, and the Crimes Code as enacted, all, with some variation, retained this aspect of the common law. At common law a conviction could rest on the uncorroborated testimony of the victim. See, e.g., Commonwealth v. Lytes, 209 Pa.Super. 436, 228 A.2d 922 (1967); Commonwealth v. Ebert, 146 Pa.Super. 362, 22 A.2d 610 (1941). Both the Model Penal Code and the Proposed Crimes Code provided that “[n]o person shall be convicted ... upon the uncorroborated testimony of the alleged victim.” Model Penal Code, § 213.6; Proposed Crimes Code, § 1207(e). In enacting the Crimes Code, however, the legislature rejected such a change, requiring no corroboration, and providing only that “the jury shall be instructed to evaluate the testimony of a victim or complaining witness with special care in view of the emotional involvement of the witness and the difficulty of determining the truth with respect to alleged sexual activities carried out in private.” Crimes Code, § 3106. Later, the legislature repealed even this provision, and the Crimes Code now provides:

The credibility of an alleged victim [of rape] shall be determined by the same standard as in the alleged credibility of an alleged victim of any other crime. The testimony of a victim need not be corroborated____ In any prosecution before a jury ..., no instructions shall be given cautioning the jury to view the alleged victim’s testimony in any other way than that in which all victims’ testimony is viewed.

Act of May 18, 1976, P.L. 120, No. 53, § 2, 18 Pa.C.S. § 3106.

It would be a mistake, however, to conclude from these similarities between the Crimes Code and the common law that in enacting the Crimes Code, the legislature simply intended to codify, in modern language, the common law definition of rape. For in certain respects the legislature rejected the common law, and, following the lead of the Model Penal Code and the Proposed Crimes Code, took a fresh approach.

At common law, and under prior statutory law, rape was conceived in terms of the victim’s refusal to consent to intercourse. See, e.g., Commonwealth v. Moskorison, 170 Pa.Super. 332, 85 A.2d 644 (1952) (“against her will” synonomous with “without her consent”). And see Commonwealth v. Stephens, supra (collecting authorities, and tracing our statutory law from 13 Edw. I, StatWestm., 2, c. 34 (1285), which provided “that if a man from henceforth do ravish a woman, married, maid, or other, where she did not consent, neither before nor after, he shall have judgment of life and of member....”). While conviction required proof that the intercourse had been accomplished both “forcibly” and “against [the victim’s] will,” the emphasis of the inquiry was on the victim’s refusal to consent, proof of the element of force being regarded as relevant to that refusal. This emphasis reflected the general attitude of the common law towards rape, summarized in Lord Hale’s often-quoted remark that rape “is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent.” 1 M. Hale, The History of the Pleas of the Crown 635 (1680), quoted in Note, Recent Statutory Developments in the Definition of Forcible Rape, 61 Va.L.Rev. 1500, 1501 (1975). As a result, the evidence would be found insufficient unless it appeared that the victim had offered a high degree of resistance; a frequently stated formula was that she must have resisted “to the utmost” of her physical capacity, and have persisted in that resistance until the intercourse was accomplished. See generally, Note, supra at 1503-08. If the compulsion was by threat of force, instead of by the actual application of force, then at common law, and under derivative statutory law, the threats had to be such as to excuse the victim from the duty of “utmost resistance.” Thus it was said that the threats must have put the victim in “fear of death or great bodily harm,” “fear of great personal injury,” “fear and terror so extreme as to preclude resistance.” Model Penal Code (1980), Comment to § 213.1, at 308 (footnote and citations omitted).

Gradually, but with increasing momentum, it became apparent that the common law conception of rape was

simply inadequate. The proven reluctance of victims to report rape, the dramatic increase in the incidence of the crime, and the low conviction rates for defendants [were] all indices of a law ... gone awry.

Note, supra at 15 (footnotes omitted).

The fundamental flaws in the common law conception were summarized in the commentary to the Model Penal Code. In the first place, the common law oversimplified to the point of falsifying the victim’s response to her situation, failing to recognize that the victim’s failure to resist might be, not because she had consented to the intercourse, but because she was “frozen by fear and panic.” Model Penal Code and Commentaries (Official Draft and Revised Comments) 1980, Comment to § 213.1, at 303. In addition, the common law demanded inordinately dangerous conduct on the part of the victim; resistance might invite death or serious bodily harm, and rather than risk either, she might “quite rationally decide[] to ‘consent’ to the intercourse.” Id. And finally,

it is wrong to excuse the male assailant on the ground that his victim failed to protect herself with the dedication and intensity that a court might expect of a reasonable person in her situation. As a practical matter, juries may require resistance to show that the male compelled her to submit, but there is little reason to encase this generalization in a rule of law. Where the proof establishes that the actor did compel submission to intercourse by force, the failure of the weak or fearful victim to display “utmost” or even “earnest” resistance should not be exculpatory.

Id. at 305-06.

In recognition of the fundamentally flawed nature, and consequent inadequacy, of the common law, the American Law Institute “determined that an essentially fresh approach should be undertaken.” Id. at 279. The essence of this approach, as embodied in the Model Penal Code, was to define rape in terms of the actor’s use of force, with no reference to the victim’s refusal to consent. As the authors explained:

By focusing upon the actor who “compels” the victim “to submit by force” and by omitting express language of consent and resistance, the Model Code casts away encrusted precedents and strikes a fresh approach. This is not to say that consent by the victim is irrelevant or that inquiry into the level of resistance by the victim cannot or should not be made. Compulsion plainly implies non-consent, just as resistance is evidence of non-consent. By the same token, the lack of resistance on a particular occasion will not preclude a conviction of rape if the jury can be convinced by the context and degree of force employed by the actor that the submission was by compulsion.

Id. at 306-07 (footnote omitted).

It was this “fresh approach” that our legislature followed when enacting the Crimes Code. It, too, “cast[] away encrusted precedents,” rejecting the common law and the 1939 Penal Code’s reference to intercourse “against the will” of the victim, and defining rape as being committed when a person

engages in sexual intercourse with another person not his spouse:

(1) by forcible compulsion;

(2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution;

18 Pa.C.S. § 3121.

When one recognizes that in enacting the Crimes Code, the legislature followed the Model Penal Code’s “fresh approach”, it becomes clear that the meaning of “forcible compulsion” is not limited to compulsion accomplished by force, or by threat of force, in the sense of “to do violence to.” For if rape could be proved only by evidence of violence, or threat of violence, the very questions would arise under the Crimes Code that arose at common law, and that led to the criticism and rejection of the common law, that is to say, the inquiry would continue to focus, instead of on the actor, on the victim: What violence was done to the victim? Was she beaten, for example, or choked? Was she threatened with death? The very essence of the Model Penal Code’s, and the legislature’s, rejection of the common law is that this should not be the inquiry—that while rape can of course be accomplished by violence, or threat of violence, it also can be accomplished by compulsion arising from something less than violence, or threat of violence.

Returning, then, to the question with which I started— which plain meaning of “force” did the legislature have in mind when it used the phrase “forcible compulsion” in the Crimes Code?—I have no hesitancy in concluding that the legislature did not mean force in the limited sense of “to do violence to”, and did mean force in the more general sense of “to constrain or compel by physical, moral, or intellectual means or by the exigencies of the circumstances.” Only this conclusion is consistent with the legislature’s manifested agreement with the Model Penal Code that a “fresh approach” should be taken, and the focus of inquiry shifted away from the victim’s consent to the actor’s force.

Nor is this conclusion disturbed by reference to the changes the legislature made in the text of the Model Penal Code, when it enacted the Crimes Code, for examination will show that these changes were stylistic only, and did not affect the substantive rejection of the common law. It seems fair to say that the legislature regarded the Model Penal Code, and the Proposed Crimes Code, as, so to speak, “overwritten”, and was of the opinion that their substance could be more briefly and simply expressed.

Thus, where the two Codes had provided for three grades of rape, the legislature provided for only one, thereby choosing to leave variations in severity of punishment to the discretion of the sentencing judge, instead of writing the variation into the Crimes Code itself. The legislature took the same approach in enacting other parts of the Crimes Code, often reducing the number of grades provided by the Model Penal Code, with a consequent increase in the discretion of the sentencing judge. See and compare section 1203(a) Deviate Sexual Intercourse by Force (second degree felony) and section 1203(b) Deviate Sexual Intercourse by Other Imposition (third degree felony) with 18 Pa.C.S. § 3123 Involuntary Deviate Sexual Intercourse (first degree felony); section 1101(b) Kidnapping (first degree felony unless actor voluntarily releases victim alive prior to trial, in which case second degree felony) with 18 Pa.C.S. § 2901 Kidnapping (first degree felony); section 1402 Burglary (second or third degree felony) with 18 Pa.C.S. § 3502 Burglary (first degree felony).

A second simplification was the omission from the Crimes Code of the reference in the Model Penal Code, and the Proposed Crimes Code, to the offense of “gross sexual imposition.” This simplification followed from the legislature’s decision to provide only one grade of rape. In the Model Penal Code, and the Proposed Crimes Code, where three grades of rape were provided, it made sense to give a name, “gross sexual imposition”, to the third grade. However, where only one grade was provided there was no reason for such labeling: the name of the one grade of offense—“rape”—included every situation in which the offense is committed.

And finally, a third simplification was the legislature’s use of the word “forcible”, in the phrases “forcible compulsion” and “by threat of forcible compulsion.” Once it is determined to reject the common law, and shift the inquiry from the victim’s consent to the actor’s force, the question arises, “How much force must the actor apply, or threaten, to be guilty of rape?” The Model Penal Code answered this question by dividing rape into three grades, each grade being defined by an objective standard by which the actor’s force is to be measured. If the actor compelled the victim to submit by the actual application of force (“compels her to submit by force”), then the rape is at least a felony of the second degree. If in applying force, the actor “inflict[ed] serious bodily injury upon anyone”, or if “the victim was not a voluntary social companion of the actor upon the occasion of the crime and had not previously permitted him sexual liberties,” then the rape is a felony of the first degree. If the actor compelled the victim to submit by threat, then the rape is a felony of the first degree if the submission was compelled “by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone,” and of the third degree if compelled “by any threat that would prevent resistance by a woman of ordinary resolution.” With slight differences, the Proposed Crimes Code is to the same effect. In enacting the Crimes Code, the legislature simplified this scheme, the simplification following upon the decision to provide only one grade of rape instead of three. Instead of distinguishing between compulsion by “force” and by “force” involving the “inflict[ion] [of] serious bodily injury”, the legislature simply referred to “forcible compulsion”, thus embracing in a single phrase both sorts of force. And instead of distinguishing between “threat of imminent death, serious bodily injury, extreme pain or kidnapping” and “threat that would prevent resistance by a woman of ordinary resolution”, the legislature simply referred to “threat of forcible compulsion that would prevent resistance by a person of reasonable resolution”, thus again embracing in a single phrase the several situations separately stated in the Model Penal Code and Proposed Crimes Code.

It only remains to discuss amendments of the Crimes Code. I have already mentioned one of the amendments— the amendment providing that the credibility of the alleged victim “should be determined by the same standard as is the credibility of an alleged victim of any other crime,” and that “no instructions shall be given cautioning the jury to view the alleged victim’s testimony in any other way than that in which all victims’ testimony is viewed.” Act of May 18, 1976, P.L. 120, No. 53, § 2, 18 Pa.C.S. § 3106. As one reflects upon this amendment, one is increasingly impressed with its importance. For the most striking feature of the common law was that the alleged victim was not treated by the standard that victims of other crimes were treated. To the contrary, she was discriminated against in many ways. The common law’s concern was not for the woman so much as for the man. See generally Note, The Victim in a Forcible Rape Case: A Feminist View, 11 American Crim.L. Rev. 335 (1973) (collecting cases and commentaries). “The real victim,” it was said, “too often is the innocent man.” 3A J. Wigmore, Evidence 736 n. 6 (1970). The assumption was “that men are often unjustly imprisoned because of accusations brought by malicious women who all too often are afflicted with sexual and emotional problems.” Note, supra at 336 (footnote omitted). In many cases, it was suggested, “the victim actually sets up the rape either consciously or unconsciously,____[WJomen [it was asserted] are so inherently masochistic that rape may actually be a ‘pleasurable event’ or a ‘liberating experience’ ”. Id. at 339 (footnote omitted). The following statement summarizes the attitude of the common law:

Force and consent are the significant issues in rape trials. Many times a female will submit after a lot of talk, liquor, and lunges, and later, for a wide range of reasons, decide that she was really raped. Some girls rape awful easy. So many chicks say no no when there’s yes yes in their eyes, and their thighs seem to spread at a mere flick of the finger. The rape law is often used by a woman to “get” a former boyfriend or a hoped-for boyfriend who never materialized.

S. Rosenblatt, Justice Denied 36 (1971), quoted Note, supra at 335.

It was this attitude that rendered the common law inadequate to deal with rape, and that resulted in the Model Penal Code’s rejection, followed by the Crimes Code’s rejection, of the common law. The legislature’s explicit provision, in 1976, that an alleged victim of rape was not to be regarded as probably untrustworthy and emotionally unbalanced, but instead was to be treated by the standard that alleged victims of other crimes were treated, can only be understood as an emphatic reiteration by the legislature of its determination, manifested by its enactment of the Crimes Code, that it should be easier to prove rape than it had been at common law.

The same may be said of the other amendments of the Crimes Code made by the Act of May 18, 1976, supra. Section 1 of the Act provided that

Prompt reporting to public authority is not required in a prosecution [for rape]: Provided, however, That nothing in this section shall be construed to prohibit a defendant from introducing evidence of the alleged victim’s failure to promptly report the crime if such evidence would be admissible pursuant to the rules of evidence.

18 Pa.C.S. § 3105.

Section 2 of the Act provided that

The alleged victim need not resist the actor in prosecutions [for rape]: Provided, however, That nothing in this section shall be construed to prohibit a defendant from introducing evidence that the alleged victim consented to the conduct in question.

18 Pa.C.S. § 3107.

(This amendment repealed the provision in the Crimes Code, which had been taken from Section 213.6 of the Model Penal Code, that no prosecution could be instituted or maintained unless complaint was made within three months.) And finally, Section 1 of the Act further provided that

§ 3104. Evidence of victim’s sexual conduct

(a) General rule.—Evidence of specific instances of the alleged victim’s past sexual conduct, opinion evidence of the alleged victim’s past sexual conduct, and reputation evidence of the alleged victim’s past sexual conduct shall not be admissible in prosecutions under this chapter except evidence of the alleged victim’s past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence.

(b) Evidentiary proceedings.—A defendant who proposes to offer evidence of the alleged victim’s past sexual conduct pursuant to subsection (a) shall file a written motion and offer of proof at the time of trial. If, at the time of trial, the court determines that the motion and offer of proof are sufficient on their faces, the court shall order an in camera hearing and shall make findings on the record as to the relevance and admissibility of the proposed evidence pursuant to the standards set forth in subsection (a).

1972, Dec. 6, P.L. 1482, No. 334, § 1, effective June 6, 1973. As amended 1976, May 18, P.L. 120, No. 53, § 1, effective in 30 days.

18 Pa.C.S. § 3104.

Thus, each of the 1976 amendments of the Crimes Code removed an obstacle to the proof of rape, thereby further advancing the legislature’s determination that the alleged victim of a rape should be treated as the alleged victim of any other crime. The last-mentioned amendment is perhaps of particular significance. Experience with the common law had shown that a principal tactic of defense counsel was to attack the alleged victim’s chastity, the suggestion being that if she had had prior sexual relations she was a bad person. The result was summarized by one trial judge, in a statement to a jury that had just acquitted a defendant charged with rape:

It is almost impossible in this country to get a conviction of rape____ I am reluctantly coming to the conclusion ... [that] at least as far as jurors are concerned, rape is no longer a crime____ [I]nstead of trying the defendant, you make the poor girl the defendant____ [G]irls don’t report rape for the humiliation involved in it, the degradation they go through in the trial____ They are made the defendant, and they walk out of this court room with one thought in their mind: In our courts there is no justice for the victims of rape. And I can’t say I disagree with them.

Quoted in Note, Recent Statutory Developments in the

Definition of Forcible Rape, supra at 1500.

By limiting evidence of the alleged victim’s past sexual conduct to evidence of conduct with the defendant where consent is at issue, the legislature sought to counter the humiliation and degradation so often inflicted upon the alleged victim.

Strictly speaking, it is perhaps not necessary to consider the 1976 amendments of the Crimes Code, for as discussed above, when the Crimes Code is examined in the light of its several sources—prior common and statutory law, the Model Penal Code, and the Proposed Crimes Code—its meaning is clear. Nevertheless, consideration of the 1976 amendments is useful, for the amendments confirm, and emphasize, that meaning. It is as though the legislature said, in 1976: “In 1972, when we enacted the Crimes Code, we were determined to reject the common law, and to make proof of rape easier. Now we find we did not go far enough. Women still are not being treated fairly. We therefore now enact these amendments.”

In conclusion, then: Appellant’s argument that the evidence was insufficient depends upon the fact that the evidence fails to show either that he did, or threatened to do, any violence to the complainant. Were this prosecution a prosecution at common law, this argument would prevail. However, it is a prosecution under the Crimes Code, which rejects the common law and only requires that the evidence show that the complainant submitted to appellant’s demands because he made such a “threat of forcible compulsion [as] would prevent resistance by a person of reasonable resolution.” By “forcible compulsion” the legislature meant “compulsion by physical, moral, or intellectual means or by the exigencies of the circumstances.” By this standard, the evidence, viewed in the light most favorable to the Commonwealth, was sufficient. Appellant threatened the complainant, a 14 year old girl, with being returned to the detention home, and with not seeing her father again. Complainant was afraid of going back to the detention home. Her father and brother, with whom she had been living, had filed charges against her, with the result that she had spent three days there, and then been placed in appellant’s home by court order. I believe that the jury was entitled to find that the complainant was compelled to submit to appellant’s demands by the exigencies of her circumstances, and, further, that in submitting, she acted as a person of reasonable resolution.²

Resisting this conclusion, appellant relies heavily on, and the majority cites with approval, Commonwealth v. Biggs, 320 Pa.Super. 265, 467 A.2d 31 (1983). In Biggs the defendant had sexual intercourse, over a period of two years, on several occasions with his 17 year-old daughter. She complied because her father told her that the Bible said it was the oldest daughter’s duty to have intercourse with her father when the mother could no longer provide as a mother. He also told her that if she told anyone, he would show nude pictures of her. He never did any violence to her, nor did he threaten to do so. We reversed the defendant’s conviction of rape, holding that there was “no evidence that the intercourse was accomplished through threat of forcible compulsion____ Rather, [the defendant] asserted a biblical basis for the intercourse and assured his daughter’s silence by threats, not of force, but of humiliation.” Id., 320 Pa.Superior Ct. at 267, 467 A.2d at 32. To the extent that Biggs holds that threats of humiliation are insufficient as a matter of law to constitute a threat of forcible compulsion, it should be overruled.

Some other cases should be noticed. In Commonwealth v. Irvin, 260 Pa.Super. 122, 393 A.2d 1042 (1978), we said that

the degree of force involved in rape and involuntary deviate sexual intercourse is defined, not in terms of the physical injury to the victim, but in terms of the effect it has on the victim’s volition. Both crimes are committed when the actor accomplishes the crime “by forcible compulsion” or “by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution.” 18 Pa.C.S. § 3121(1), (2); § 3123(1), (2). The force necessary to support convictions for rape and involuntary deviate sexual intercourse need only be such as to establish lack of consent and “to induce a woman to submit without additional resistance____” Commonwealth v. Moskorison, 170 Pa.Super. 332, 336, 85 A.2d 644, 646 (1952). As one court has noted, “The degree of force required to constitute rape is relative depending upon the particular circumstances. Actual application of force is not required.” Commonwealth v. Steele, 75 Dauph. 241, 246 (1960).

Id., 260 Pa.Superior Ct. at 125-26, 393 A.2d at 1044. This language, it will be observed, is consistent with the conclusion I have reached, that “forcible compulsion” is not limited to compulsion by violence or threat of violence. However, I have not relied on it, and therefore have not mentioned it until now, for in Irvin the defendant had tom off the victim’s clothes and started choking her. Thus, he did in fact do violence, and we were not required to decide whether if he had not, there would have been “forcible compulsion.” The same is true of Commonwealth v. Williams, 294 Pa.Super. 93, 439 A.2d 765 (1982), and Commonwealth v. Rough, 275 Pa.Super. 50, 418 A.2d 605 (1980). In Williams the defendant and the victim were strangers. He offered to give her a ride and then changed direction, bolting the door and keeping his hand in his pocket, repeatedly threatening to kill her. The victim testified that she thought that he had a weapon. While our opinion does not mention it, since the threats were of death, this case clearly involved a threat to do violence. Similarly, in Rough the defendant was the 15 year old victim’s stepfather. He struck her on the occasion of the rape and otherwise treated her forcibly. We said that “the victim’s testimony as to her fear and appellant’s forceful treatment of her demonstrated sufficient lack of consent to sustain the verdict.” Id., 275 Pa.Superior Ct. at 57, 418 A.2d at 608.³

Finally, I am constrained to comment upon the majority’s reliance upon Commonwealth v. Perrin, 484 Pa. 188, 398 A.2d 1007 (1979). The majority cites Perrin as its sole case law support for the proposition that “the highest court of this Commonwealth [has expressed the view] that ‘forcible compulsion’ is equivalent to ‘physical compulsion’ rather than ‘psychological duress.’ ” At 281; see id. at 286. The majority acknowledges that the Supreme Court’s statement that “[t]he crime of involuntary deviate sexual intercourse is committed when a person forces another person by actual physical compulsion or threats thereof to engage in acts of anal or oral intercourse” is “dictum in view of the facts of the case.” At 281. But the majority does not acknowledge how different the facts in Perrin were from those here. In Perrin the victim was found strangled to death. Thus, the Court did not have before it, and therefore did not consider, whether rape can occur without the application of physical force. It is not at all surprising that the Court referred to “actual physical compulsion”, for there was no doubt that the victim had indeed been subjected to “actual physical compulsion:”

From the fact that the victim was found strangled to death on her bed with her legs spread apart, her clothing torn from her body, spermatozoa in her vagina and tears on the wall of her rectum, the jury could have found beyond a reasonable doubt that she had been sexually assaulted and forcibly sodomized.

484 Pa. at 192-93, 398 A.2d at 1010.

I suggest, therefore, that the dictum in Perrin, even as dictum, in no way supports the majority’s position.

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Appellant also argues that even if the evidence was sufficient to show “forcible compulsion”, still, the trial court’s instruction to the jury was inadequate in failing to explain the meaning of “forcible compulsion.” I agree with appellant, although since appellant’s conviction of rape is to be reversed, my comments are rather academic.

The trial court’s statement of the elements of rape was in accordance with the Pennsylvania Standard Jury Instructions, 15.3121A. N.T. 1/22/82, 72. In discussing the evidence, however, the court stated, “Now, in that respect the compulsion, as I believe the testimony would show, would be the threat of return to the detention home.” N.T. 1/22/82, 73. This statement could have been understood by the jury in two ways: as saying only that the testimony pertaining to compulsion was the testimony that appellant had threatened to return the complainant to the detention home, that is, as only reminding the jury of the evidence; or as saying that the court itself was of the opinion that the testimony showed that the victim was actually compelled by the threat, and perhaps also as implying that it was reasonable for her to have responded in the way that she did. Given the central importance to this case of whether there had or had not been a threat of forcible compulsion such as would prevent resistance by a person of reasonable resolution, this ambiguity may not be overlooked. A trial judge may

express his own opinion, including the weight and effect to be given the evidence and its points of strength and weakness, provided that the statements he makes have a reasonable basis and it is clearly left to the jury to decide the facts, regardless of any opinion expressed by the judge. Williams v. Philadelphia Transportation Co., 415 Pa. 370, 203 A.2d 665 (1964); Commonwealth v. Collura, 183 Pa.Super. 17, 128 A.2d 101 (1956). Commonwealth v. Rough, supra, 275 Pa.Super. at 60, 418 A.2d at 610 (emphasis added).

Here, the proviso was not satisfied. For while the trial court had a reasonable basis for thinking that the evidence proved a sufficient threat of forcible compulsion, its instruction did not clearly leave that determination to the jury.

In making this observation, I am mindful that the court’s instruction to the jury must be read as a whole to determine whether it was fair and not prejudicial, adequately and accurately stated the law, and was sufficient to guide the jury. Commonwealth v. Peterson, 271 Pa.Super. 92, 412 A.2d 590 (1979). Here, read as a whole, the instruction told the jury that “you are the finders of fact and you must make these various determinations and apply them to the law as I have indicated.” N.T. 1/22/82, 72. One of the “various determinations” thus mentioned was whether the complainant had submitted to appellant’s demands as the result of such a “threat of forcible compulsion [as] would prevent resistance by a person of reasonable resolution.” I have just referred to the court’s ambiguous comment on the evidence of compulsion as possibly interfering with that determination. If, however, that possibility is put aside, still the court’s instruction was inadequate, for it offered no guidance to the jury on the meaning either of “forcible compulsion” or of “a person of reasonable resolution.” Instead, the trial court instructed the jury only in the language of the statute. Thus, the jury was twice told that the intercourse needed to be accomplished by a “threat of forcible compulsion that would prevent resistance by a person of reasonable resolution.” N.T. 1/22/82, 71, 72. When instructing on involuntary deviate sexual intercourse, the trial court once said, “threat of forcible compulsion that would prevent resistance,” and another time said, “accomplished the deviate sexual intercourse by either forcible compulsion or threat of forcible compulsion.” N.T. 1/22/82, 75.

On the new trial that I should order the jury would be instructed in terms consistent with this opinion. Thus the trial court would be required to explain that “forcible compulsion” means “compulsion by physical, moral, or intellectual means or by the exigencies of the circumstances.” Since this language is itself somewhat abstract, and might seem to the jury rather high-flown, the trial court might elaborate upon, or illustrate, it by appropriate reference to the evidence. That would be left to the trial court’s sound discretion.

On the new trial I should order the jury would also be instructed how to determine how a “person of reasonable resolution” would behave, and who a “person of reasonable resolution” is. The instruction that was given included no explanation of the importance of the jury’s function in this regard. The trial court should have made clear that “reasonable resolution” is an objective standard, so that the jury understood that even if it found the complainant credible, that was not the end of its inquiry. Again, I should leave to the trial court’s sound discretion to what extent on retrial reference to the evidence may be appropriate. However, it seems probable that some reference would be needed, if the jury were to understand that “a person of reasonable resolution” is a person in the situation of the complainant, so that in deciding whether the complainant manifested “reasonable resolution”, factors such as her age and the circumstances of her commitment to and release from the detention home will be considered by the jury. Thus, for example, in a different case, factors to be considered might be that the complainant was in an isolated place, see Commonwealth v. Bowes, 233 Pa.Super. 71, 335 A.2d 718 (1975), or had been beaten by the defendant on prior occasions, see Commonwealth v. Rough, supra, or was confronted with a friend of the defendant of whom she was more afraid, see Commonwealth v. Brown, 290 Pa.Super. 448, 434 A.2d 838 (1981). Another factor the trial court might think it appropriate to comment on would be the nature of the compulsion alleged, for that might well bear upon the jury’s evaluation of complainant’s conduct. Evidence of actual violence will ordinarily be the easiest for a jury to evaluate: the victim may have scars from having been beaten, for example. Evidence of compulsion by threat may be more difficult to evaluate, however, and especially is this likely to be the case where the threat is—as it was here—of something other than violence. For such a threat will have a variable impact upon the person threatened. While none of us would wish to be killed or seriously hurt, we might react with different intensities to a threat such as a threat to be returned to a detention home. The trial court should, in an appropriate manner, as indicated by the evidence, give the jury guidance in these respects, making clear, not only that the threat must have been such as to cause a reasonable person to submit, but that the threat must actually have compelled the particular complainant to have submitted. Even in the face of a threat of death, which would cause a reasonable person to submit, if the complainant knows that the defendant is not serious and really means her no harm, any ensuing sexual intercourse cannot be rape.

The trial court’s instruction on involuntary deviate sexual intercourse also requires consideration, although since, contrary to my view, appellant’s conviction of that crime will be affirmed, here too my comments are academic so far as disposition of this case is concerned. As I have mentioned, when discussing the sufficiency of the evidence, see note 3, supra, the definition of involuntary deviate sexual intercourse includes the phrase “by threat of forcible compulsion that would prevent resistence by a person of reasonable resolution.” 18 Pa.C.S. § 3123(2). Accordingly, jury instructions on the definition of involuntary deviate sexual intercourse should be consistent with the comments just made regarding instruction on the definition of rape. I note, however, that a defendant such as appellant may be convicted of involuntary deviate sexual intercourse without a showing of “forcible compulsion.” This is so because subsection 5 of Section 3123 of the Crimes Code provides that a person commits involuntary deviate sexual intercourse “when he engages in deviate sexual intercourse with another person ... who is less than 16 years of age,” 18 Pa.C.S. § 3123(5)—as the complainant in this case was. Subsection 5 was specifically listed on the criminal complaint in this case, and the information specifies that the victim was fourteen. It is not at all clear why the Commonwealth did not request that the jury be instructed in accordance with subsection 5.

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Appellant also argues that the trial court should have arrested judgment on the convictions on the two counts of indecent exposure “in that those two verdicts [of guilty] encompassed the same criminal conduct as the two convictions of Involuntary Deviate Sexual Intercourse^]” Brief for Appellant at 7. Since I should hold that a new trial must be held on the charges of involuntary deviate sexual intercourse, I do not consider this argument. Appellant has not otherwise challenged his convictions of indecent exposure. However, I believe the judgments of sentence imposed on those convictions should be vacated. The Sentencing Code does not provide for a suspended sentence. See 42 Pa.C.S. § 9721(a); Commonwealth v. Ferrier, 326 Pa.Super. 331, 473 A.2d 1375 (1984) (indefinitely suspended sentence not a sanctioned sentencing alternative). The sentences imposed were suspended sentences and as such, were illegal, a fact that we may notice sua sponte. Id. See Commonwealth v. Brown, 290 Pa.Super. 448, 434 A.2d 838 (1981). But see Commonwealth v. Goldhammer, 507 Pa. 236, 248 n. 5, 489 A.2d 1307,1313 n. 5 (1985) (double jeopardy effect of suspended sentence).

The sentences imposed on four of the five counts charging appellant with corrupting the morals of a minor were also suspended sentences. They therefore also should be vacated and the case remanded for resentencing on the one remaining count.

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Appellant’s last argument is that the trial court abused its discretion in ruling that the complainant was competent to testify. This argument is without merit.

It is well settled that the competency of a witness is presumed and the burden to show incompetency falls upon the party asserting it. Commonwealth v. Riley, 458 Pa. 390, 393, 326 A.2d 384, 385 (1974). When the witness is a child under the age of fourteen years, the trial judge should be satisfied that the witness has

“(1) such capacity to communicate, including as it does both an ability to understand questions and to frame express and intelligent answers; (2) mental capacity to observe the occurrence itself and the capacity of remembering what it is that [the witness] is called to testify about; and (3) a consciousness of the duty to speak the truth.”

Rosche v. McCoy, 397 Pa. 615, 620, 156 A.2d 307, 310 (1959) (emphasis in original). See also Commonwealth v. Baker, 466 Pa. 479, 485, 353 A.2d 454, 457 (1976). The determination of competency is a matter for the sound discretion of the trial court, which will not be disturbed absent a clear abuse of that discretion. Commonwealth v. Ware, 459 Pa. 334, 329 A.2d 258 (1974). Accord, Commonwealth v. Martinez, 498 Pa. 387, 446 A.2d 899 (1982).

Commonwealth v. Hart, 501 Pa. 174, 177, 460 A.2d 745, 747 (1983).

Here, the complainant was not under fourteen years of age. Nevertheless, the trial court examined her in camera before ruling on her competency. N.T. 1/21/82, 113-24. On the basis of our review of the questioning of her by the trial court and counsel, I am satisfied that in ruling her competent, the trial court did not abuse its discretion. The reasons advanced by appellant in challenging the complainant’s competency go not to competency but credibility.

WICKERSHAM, J., joins this Opinion.

1 . PENAL CODE OF 1939, AS AMENDED

§ 4721. Rape

(a) Whoever has unlawful carnal knowledge of a woman, forcibly and against her will, is guilty of rape, a felony, and on conviction, shall be sentenced to pay a fine not exceeding ten thousand dollars ($10,000), and undergo imprisonment, by separate or solitary confinement at labor for a term the length of which shall be determined by the court but shall not be less than fifteen (15) years or more than life if in the course of the commission of the act, he inflicts serious bodily injury upon anyone. In all other cases he shall be sentenced to pay a fine not exceeding ten thousand dollars ($10,000), or undergo imprisonment by separate or solitary confinement at labor or by simple imprisonment for a term which shall be determined by the court, the maximum of which shall not exceed twenty (20) years, or both.

As used in this section the term "serious bodily injury" means bodily injury which creates a substantial risk of death or which causes serious permanent disfigurement or protracted loss or impairment of the function of any member or organ of the body.

(b) Whoever, being of the age of sixteen (16) years and upwards, unlawfully and carnally knows and abuses any woman child under the age of sixteen (16) years with her consent, is guilty of statutory rape, a felony, and on conviction, shall be sentenced to pay a fine not exceeding seven thousand dollars ($7,000), or undergo imprisonment, by separate or solitary confinement at labor, or by simple imprisonment, not exceeding fifteen (15) years or both.

Upon the trial of any defendant charged with the unlawful carnal knowledge and abuse of a woman child under the age of sixteen (16) years, if the jury shall find that such woman child was not of good repute, and that the carnal knowledge was with her consent, the defendant shall be acquitted of rape, and be convicted of fornication.

MODEL PENAL CODE

Section 213.1. Rape and Related Offenses.

(1) Rape. A male who has sexual intercourse with a female not his wife is guilty of rape if:

(a) he compels her to submit by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone; or

(b) he has substantially impaired her power to appraise or control her conduct by administering or employing without her knowledge drugs, intoxicants or other means for the purpose of preventing resistance; or

(c) the female is unconscious; or

(d) the female is less than 10 years old.

Rape is a felony of the second degree unless (i) in the course thereof the actor inflicts serious bodily injury upon anyone, or (ii) the victim was not a voluntary social companion of the actor upon the occasion of the crime and had not previously permitted him sexual liberties, in which cases the offense is a felony of the first degree. Sexual intercourse includes intercourse per os or per anum, with some penetration however slight; emission is not required.

(2) Gross Sexual Imposition. A male who has sexual intercourse with a female not his wife commits a felony of the third degree if:

(a) he compels her to submit by any threat that would prevent resistance by a woman of ordinary resolution; or

(b) he knows that she suffers from a mental disease or defect which renders her incapable of appraising the nature of her conduct; or

(c) he knows that she is unaware that a sexual act is being committed upon her or that she submits because she falsely supposes that he is her husband.

PROPOSED CRIMES CODE

Section 1201. Definitions.—In this article, unless a different meaning plainly is required:

(1) the definitions given in section 901 apply; and

(2) "Sexual intercourse," in addition to its ordinary meaning, includes intercourse per os or per anus, with some penetration however slight; emission is not required;

(3) "Deviate sexual intercourse” means sexual intercourse per os or per anus between human beings who are not husband and wife, and any form of sexual intercourse with an animal;

(4) “Sexual contact” is any touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire, in either person.

Section 1202. Rape and Related Offenses.—(a) Rape. A male who has sexual intercourse with a female not his wife is guilty of rape if:

(1) he compels her to submit by force or by threat of imminent death, serious bodily injury, or kidnapping, to be inflicted on anyone; or

(2) he has substantially impaired her power to appraise or control her conduct by administering or employing without her knowledge drugs, intoxicants or other means for the purpose of preventing resistance; or

(3) the female is unconscious; or

(4) the female is less than fifteen (15) years old; or

(5) he knows that she suffers from a mental disease or defect which renders her incapable of appraising the nature of her conduct.

Rape is a felony of the first degree if: (i) in the course thereof the actor inflicts serious bodily injury upon anyone; or (ii) the victim was not a voluntary social companion of the actor upon the occasion of the crime and had not previously permitted him sexual liberties.

In all other cases the offense is a felony of the second degree.

(b) Gross Sexual Imposition. A male who has sexual intercourse with a female not his wife commits a felony of the third degree if:

(1) he compels her to submit by any threat that would prevent resistance by a woman of ordinary resolution; or

(2) he knows that she is unaware that a sexual act is being committed upon her or that she submits because she mistakenly supposes that he is her husband.

CRIMES CODE

§ 3121. Rape

A person commits a felony of the first degree when he engages in sexual intercourse with another person not his spouse:

(1) by forcible compulsion;

(2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution;

(3) who is unconscious; or

(4) who is so mentally deranged or deficient that such person is incapable of consent.

2 . The differences between the foregoing interpretation of the Crimes Code and the majority’s interpretation are instructive. In my view, the majority’s interpretation of the Crimes Code continues to keep women in a position subordinate to men: a woman’s testimony in a rape case that she was compelled to submit is not to be trusted; she must be able to prove that the man used physical force. Neither, in the majority’s view, is a jury to be trusted: Although the Crimes Code requires that in submitting, the woman must have acted as a woman of reasonable resolution, a jury cannot be relied upon to apply this standard; instead it will convict as a rapist one who was only a seducer. It is, I suggest, those differing convictions, regarding a woman’s appropriate status and a jury’s competence and appropriate function, that underlie the majority’s and my differing interpretations of the Crimes Code.

3 . As mentioned, appellant was also charged with, and convicted of, attempted rape and involuntary deviate sexual intercourse, and his argument that the evidence was insufficient extends to those convictions, as well as to his conviction of rape. His argument may be rejected summarily, however, for in defining involuntary deviate sexual intercourse, the Crimes Code provides that the offense is committed when the intercourse is accomplished “by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution.” 18 Pa.C.S. § 3123(2). Accordingly, the preceding discussion of the meaning of this language as used in the definition of rape is applicable.