Saying ‘No’ Not Enough for Rape Case : Law: Pennsylvania Supreme Court says force must be used or threatened to fit statute’s definition of crime. Women’s groups decry the ruling.

She kept saying “no.”

She said it when Robert Berkowitz locked his college dorm room. She said it when he pushed her on the bed and removed her underwear.

She did not try to escape. She did not try to fight. He did not use force.

Under Pennsylvania law, Berkowitz did not commit rape, the all-male state Supreme Court said in a ruling issued at the end of last week but not publicized until Thursday. The 7-0 ruling, women’s rights advocates say, runs counter to advice often given about what to do if attacked.

Kathryn Geller Myers, spokeswoman for the Pennsylvania Coalition Against Rape, said it sends a dangerous message.

“We don’t teach women to fight back because it escalates the violence in an already violent situation,” she said. “No one can say why she didn’t kick or scream. The law can’t dictate what an individual’s survival instincts should be.”

The Supreme Court said state law specifically defines rape as the use of force--physical or psychological--or at least a threat of force. Justice Ralph Cappy, in writing the opinion, said the woman acknowledged that Berkowitz did not use force and did not restrain her during the assault.

“As to the complainant’s testimony that she stated ‘no’ throughout the encounter with appellee, we point out that, while such an allegation of fact would be relevant to the issue of consent, it is not relevant to the issue of force,” Cappy wrote.

Berkowitz’s lawyer, Mark Sheppard, said the ruling was a further definition of the legal term rape.

“I don’t think it’s a step backward,” Sheppard said. “All the court did was to interpret the statute and its fair meaning, and gave strength to the view that just saying ‘no’ wasn’t enough if force wasn’t used.”

The attack occurred at East Stroudsburg University in 1987 after the woman--a student--entered Berkowitz’s room, looking for his roommate.

Berkowitz was convicted in Pennsylvania’s Common Pleas Court of rape and indecent assault. He was sentenced to one to four years in jail but remained free on bail pending appeal. The convictions were overturned in Superior Court.

The high court said the rape conviction was correctly reversed. It reinstated the conviction on indecent assault, a misdemeanor punishable by six to 12 months in jail.

State Rep. Karen Ritter has introduced legislation to change the definition of rape. The current law allows for no charges other than rape and indecent assault.

Under her proposal, prosecutors could seek convictions of sexual assault and aggravated sexual assault in cases with a lack of consent but no evidence of force. Both are second-degree felonies.

The Pennsylvania ruling comes a month after the California Supreme Court ruled the opposite way in a similar case. The California court unanimously held that a man may be convicted of rape even if he was unarmed and the victim submitted without a struggle.

The California high court ruled in a 1990 San Diego case in which a 22-year-old woman was raped on the eve of her wedding as she slept at a friend’s house. She said she was too afraid to cry out or struggle.

Russell Babcock, an attorney for the defendant in the California case, said “by the (California) Supreme Court’s decision, as long as it includes elements of fear, it is rape.”