Com. v. Mlinarich

• Decision Date: 30 August 1985
• Citation: 345 Pa.Super. 269,498 A.2d 395
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Joseph MLINARICH, Appellant. 473 Pittsburgh 1983
• Court: Pennsylvania Superior Court

Page 395

498 A.2d 395

345 Pa.Super. 269

COMMONWEALTH of Pennsylvania, Appellee, v. Joseph MLINARICH, Appellant.

473 Pittsburgh 1983

Superior Court of Pennsylvania.

Argued July 23, 1984.

Filed Aug. 30, 1985.

[345 Pa.Super. 271] Robert D. Gleason, Johnstown, for appellant.

Dennis M. McGlynn, Johnstown, for Commonwealth, appellee.

Before SPAETH, President Judge, and WICKERSHAM, BROSKY, WIEAND, CIRILLO, DEL SOLE, MONTEMURO, JOHNSON and POPOVICH, JJ.

WIEAND, Judge:

The issue in this appeal is the interpretation to be placed upon the phrase "forcible compulsion" as it was used to define the crime of rape. What did the legislature intend when it defined rape as sexual intercourse with another person "by forcible compulsion " or "by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution"? Did the legislature intend to include within the crime of rape acts of sexual intercourse induced by threats to do non-violent acts? After a careful review of the legislative history of Section 3121 of the Crimes Code, 18 Pa.C.S. § 3121, and the legal decisions in this and other jurisdictions, we conclude that the legislature intended the term "forcible compulsion" to mean "physical compulsion or violence."

The complainant in this case had been committed to the Cambria County Detention Home at the age of thirteen after admitting the theft of her brother's ring. Joseph Mlinarich was a neighbor of the child's father. Mlinarich and his wife agreed to assume custody of the juvenile, who was then placed in their home. Shortly thereafter, on the occasion of the child's fourteenth birthday, Mlinarich allegedly asked her to undress and, when she complied, fondled her while she sat on his lap. When the juvenile asked him to stop, Mlinarich did so. The same scenario was repeated four or five times during the succeeding two weeks. Thereafter, on five separate dates, events occurred which led to criminal charges and convictions which are the subject of appellate review.

Because of events occurring on June 15, 1981, Mlinarich was convicted of attempted rape. The testimony of the juvenile was that appellant had threatened to send her back to the detention home if she refused to undress and engage in sexual intercourse. Although she undressed on that occasion, appellant's efforts to achieve penetration were unsuccessful. A similar incident occurred on June 19, 1981. Again, in response to a threat by appellant to send her back to the detention home and amidst her own tears, the juvenile submitted to appellant's unsuccessful attempts to penetrate her vagina. The events of this day were the basis for appellant's second conviction of attempted rape. By virtue of similar threats made on June 26, 1981, appellant was finally able to achieve penetration. For this he was convicted of rape. Because of events occurring on June 29 and July 1, appellant was also convicted of involuntary deviate sexual intercourse. Mlinarich was convicted additionally on five counts of corrupting the morals of a child for his conduct on all five dates and on two counts of indecent exposure for conduct occurring on June 29 and July 1. On appeal, he contends that the Commonwealth failed to prove that he engaged in sexual acts with another person by forcible compulsion or threat of forcible compulsion. ¹

The crime of rape, a felony of the first degree, is defined at 18 Pa.C.S. § 3121 as follows:

A person commits a felony of the first degree when he engages in sexual intercourse with another person ...:

(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.

This provision, we are admonished, "shall be construed according to the fair import Our task in this case is made more difficult because the victim of appellant's sexual advances was a fourteen year old child. The definition which we adopt, however, will know no age limitation. It is with a view to general application, therefore, that we attempt to define the parameters of the legislative proscription against sexual intercourse by forcible compulsion or threat of forcible compulsion.

of [its] terms." 18 Pa.C.S. § 105. Because it is a penal statute, however, it must be strictly construed. Commonwealth v. Driscoll, 485 Pa. 99, 107, 401 A.2d 312, 316 (1979) (plurality opinion); Commonwealth v. Gordon, 342 Pa.Super. 480, ---, 493 A.2d 691, 695 (1985); Commonwealth v. Darush, 256 Pa.Super. 344, 348, 389 A.2d 1156, 1158 (1978). Strict construction is necessary to avoid the injustice of convicting a person without clear notice to him that contemplated conduct is unlawful. Commonwealth v. Broughton, 257 Pa.Super. 369, 377, 390 A.2d 1282, 1286 (1978). It also serves to prevent courts from creating offenses which the legislature did not intend to create. Commonwealth v. Cluck, 252 Pa.Super. 228, 238, 381 A.2d 472, 477 (1977).

At common law, rape was defined as unlawful carnal knowledge of a woman, not a spouse, forcibly and against her will. Commonwealth v. Stephens, 143 Pa.Super. 394, 396, 17 A.2d 919, 920 (1941). This common law definition was incorporated into the statutory law of Pennsylvania from earliest times. It is the same definition which was included in Section 721 of the Penal Code of 1939. ² The phrase "against her will" was held by the courts to be synonymous with absence of consent. The decided cases placed great emphasis on the presence or absence of consent in determining whether the crime of rape had been committed. Force, however, was also a necessary ingredient. Commonwealth v. Jaynes, 137 Pa.Super. 511, 10 A.2d 90 (1939). "The only relaxation of this rule [was] that this force [might] be constructive. Under this relaxation, it [was] held that where the female was an idiot, or had been rendered insensible by the use of drugs or intoxicating drinks, and, in one case, where she was under the age of ten years, she was incapable of consenting, and the law implied force." Commonwealth v. Stephens, supra, 143 Pa. at 399, 17 A.2d at 921.

The common law definition of rape was determined to be unsatisfactory. It was found inadequate not because of its insistence that force or violence be an essential element but because of its inordinate emphasis on "lack of consent." This element of the offense had been construed to require a woman to resist to the utmost. Therefore, whether she resisted sufficiently was deemed an issue for the jury in most cases where the charge was rape. The rule worked to the unfair disadvantage of the woman who, when threatened with violence, chose quite rationally to submit to her assailant's advances rather than risk death or serious bodily injury.

Because of the often unjust result achieved by the common law definition, the American Law Institute determined to find a more satisfactory approach. The original draft of the Model Penal Code proposed the establishment of separate crimes of "rape" and "intercourse without legally effective consent." The proposed crimes were defined as follows:

Section 207.4. Rape and Related Offenses.

(1) Rape by Force or Its Equivalent. A male who has carnal knowledge of a female not his wife commits a felony of the second degree if:

(a) He compels her to submit by force or violence or out of fear that death or serious physical injury or extreme pain is about to be inflicted on her or a member of her family, or by threat to commit any felony of the first degree; or (b) For the purpose of preventing resistance he administers to her or employs, without her knowledge or consent, drugs, intoxicants, or other substance or force resulting in a major deficiency of the victim's power to appraise or control behavior; or

(c) The female is unconscious or physically powerless to resist; or

(d) The female is less than 10 years old (whether or not the actor is aware of that).

An offense within this subsection shall constitute a felony of the first degree if the actor inflicts serious physical injury upon the victim, or if the victim is not a voluntary social companion of the actor and has not previously permitted him sexual liberties.

(2) Intercourse Without Legally Effective Consent. A male who has carnal knowledge of a female not his wife, in situations not covered by subsection (1), commits a felony of the third degree if:

(a) He compels her to submit by any intimidation [which would prevent resistance by a woman of ordinary resolution] [reasonably calculated to prevent resistance]; or

(b) He knows that her submission is due to substantially complete incapacity to appraise or control her own behavior, but this paragraph shall not apply where a woman over 18 years of age loses that capacity as a result of voluntary use of [intoxicants or] drugs in the company of the actor; or

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

(d) The female is less than 16 years old and the actor is at least 5 [?] years older than she is; but it shall be a defense under this paragraph if the actor proves that the girl was a prostitute.

....

Model Penal Code, § 207.4 (Tentative Draft No. 4 1955) (emphasis added). The Commentary explained that paragraph (a) of subsection (1) was intended to cover "the classic rape cases, where the woman [had been] overpowered by violence or the threat of it." By requiring only that the victim be "compelled to submit," and not that she resist "to the utmost," it was intended to eliminate to a great extent the requirement that a woman struggle when struggle would be useless and dangerous. Subsection (2), on the other hand, was designed to emphasize the absence of voluntary consent. The Comment stated:

As the gravity of the threat diminishes, the situation gradually changes from one where...