Commonwealth v. Berkowitz

As you read Berkowitz, consider these questions: 

1. Examine the facts carefully, first from the perspective of the victim, then from the perspective of the defendant. To what extent does the “he said” differ from the “she said”?
2. What are the elements of rape in Pennsylvania under Berkowitz?
3. Consent: Did the victim consent to the sex?
4. Threats: Did Berkowitz make any threats? Did the victim feel threatened?
5. Force: Did Berkowitz use “force”? Did the victim “resist”? Should "verbal resistance” be sufficient?
6. Mens rea: Do you think Berkowitz believed that he was using force? Do you think he believed that the victim was consenting? If so, do you think those beliefs were reasonable? Does his subjective mental state matter? Should it?
7. Do you think that the facts in Berkowitz as described by the victim should be forcible rape? What do you think the punishment should be?