Court’s Lack-of-Resistance Ruling Cited in Dismissal of Rape Case

A judge dismissed a rape charge against a Salvation Army official Monday after the prosecutor said a recent state Supreme Court ruling invalidated the case because the woman did not fight back.

McKean County Dist. Atty. Charles J. Duke also said a state law that defines rape as involving the use of physical or psychological force must be changed so other cases are not dismissed.

“I think it’s a tragic thing to do, to require physical resistance in a rape case,” Duke said. “What police say . . . is that if you are in the situation of being raped, don’t resist. That can only cause greater injury to oneself.”

Duke said the woman told Salvation Army Capt. Dana Bentley “No,” “Don’t do that” and “We can’t do this” when Bentley allegedly pinned her to a bed and ordered her to perform oral sex.

Bentley’s attorney said the defense had wanted to go to trial and was confident of acquittal.

In the recent Supreme Court ruling, the woman and man involved both said she repeatedly told him no. The man, Robert A. Berkowitz, said he did not take her seriously. The woman said she had been taught in college not to fight back because doing so could get a rape victim killed.

The justices ruled, 7 to 0, that there was no evidence of force.