In a case decided by the Pennsylvania Superior Court on January 7 of this year, we have a new wrinkle in the world of what constitutes abuse under the Protection from Abuse statute. 23 Pa. C.S. 6102. The statute defines abuse to include knowing and/or recklessly causing rape, sexual assault or indecent assault. All of these offenses can be found in the Crimes Code, and no sensible person would argue that they do not constitute abuse.
Strange facts make for strange laws, however. In Boykai v. Young, a Bucks County court was confronted with a situation where husband and wife differed over how often they should have sex. 2014 Pa. Super. 4 (2014). The couple had married in November 2011 and by January 2013 the wife came to court seeking an award of support from husband although they still resided together. When she told the file clerk the facts she was referred to Legal Aid and that organization filed the PFA on her behalf.
The case includes findings by the trial court that at times husband would physically overpower wife in order to have sex. The couple had a child in April 2012 and wife testified that on at least one occasion, husband insisted they have sex despite a physician’s proscription against such activity for a period of six weeks. Husband testified that after the child was born he and wife only had sexual relations when she agreed.
The hearing was held almost a year after the child was born. At that time wife offered that she had sought support because husband was withholding support unless she agreed to have sex on a daily basis. The opinion from the trial court then stated that “Husband still tried to force himself on her.” Unfortunately, it is entirely unclear what form this “force” took but it appears to have been a kind of economic coercion.
The Superior Court affirmed a finding of abuse and exclusion of the husband from the household for a period of one year. The Court paid particular attention to the “forcible compulsion” definition found at Section 3101 of the Crimes Code (title 18). There, forcible compulsion goes far beyond physical acts and includes “intellectual, moral, emotional or psychological force, either express or implied.” By this definition one could be guilty of a first degree felony premised upon conduct that a Court found to be implied moral force.
Complicating this further were the facts forming the foundation for the “force”. According to the Superior Court opinion, the critical testimony was: “He stopped supporting me. He stopped paying my bills. Because he wanted to have sex seven days a week and I said, no, three days a week, And he said, no.“ The trial court opinion goes on to observe that husband perceived that his role as breadwinner entitled him to decide and that he would not permit his wife to work.
While the parties to this case were both recent immigrants from West Africa, the issue is a source of marital disagreement throughout the world. The Superior Court equated husband’s conduct in withholding money unless he secured sex on his terms to “intellectual or psychological force” as referenced in 18 Pa.C.S. 3101. In a word, both the trial court and the Superior Court here find that husband’s conduct constituted sexual assault as defined in 18 Pa. C.S. 3124.1.
This is a sad case; a fascinating case and a troubling one. The clear message is that any form of coercion, even moral coercion (if such a thing exists) constitutes a red zone of proscribed conduct. Both the public and the legal community need to understand that.
Further recommended reading: Com. v. Eckrote, 12 A.3d 383, 387 (Pa. Super. 2010) which is cited by this opinion for the proposition that threatening suicide amounts to the psychological force necessary to sustain a rape conviction. A reading of Eckrote shows it to have facts far more compelling than the conduct described in Boykai.