T H E
O L D E S T
L A W
J O U R N A L
PHILADELPHIA, TUESDAY, MARCH 11, 2014
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T H E
U N I T E D
S T A T E S
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VOL 249 • NO. 47
Forced Sex During Marriage
Warrants PFA Order, Court Rules
BY MICHAEL E. BERTIN
Special to the Legal
I
n Pennsylvania, the Protection
From Abuse Act exists to prevent and protect individuals
from abuse. The Protection From
Abuse Act is commonly referred
to as the PFA Act. Orders obtained under the PFA Act are regularly referred to as PFAs and/or
PFA orders.
“Abuse” is defined, in part, under
the PFA Act as follows: “The occurrence of one or more of the
following acts between family or
household members, sexual or intimate partners, or persons who share
biological parenthood: (1) attempting to cause or intentionally, knowingly or recklessly causing serious
bodily injury, rape, involuntary deviate sexual intercourse, sexual assault, statutory sexual assault, aggravated indecent assault, indecent
assault or incest with or without a
deadly weapon.” The recent case of
Boykai v. Young, 2004 Pa. Super. 4
(January 7, 2014), pertained to an
interesting aspect of the application of the PFA Act. Pursuant to
the Pennsylvania Superior Court’s
holding in Boykai, rape and/or
MICHAEL E. BERTIN is
a partner at the law firm
of Obermayer Rebmann
Maxwell & Hippel. Bertin
is co-author of the book
“Pennsylvania
Child
Custody Law, Practice, and
Procedure.” Bertin is the
immediate past chair of the
family law section of the Philadelphia Bar Association,
co-chair of its custody committee, and chair of the rules
committee and member of council of the family law
section of the Pennsylvania Bar Association.
sexual assault occurring between a
married couple warrants the entry
of a PFA order. Prior to the 1980s,
when the marital rape exemption
existed, this would not be the case.
The pertinent facts of the Boykai
case are as follows. The parties
are both from Africa. Geraldine
Boykai arrived in the United States
in 2004 and Ted Young arrived
in 2005. The parties met in 2010
and, after Boykai became pregnant, the parties married in 2011.
One child was born of the parties’
marriage. According to the opinion, “the wife’s principal allegation
was that the husband forced her on
numerous occasions to have sex
against her will.” Boykai testified
that this even occurred when she
was very pregnant as well as other
times after they were married. She
also testified “in some detail” as to
how Young would physically overpower her for sex. According to
the opinion: “She stated he wanted
intercourse three times a day, seven
days a week.” The opinion reflects
that Young still insisted on at least
one occasion to have sex during the
six-week window following her
pregnancy when she was advised
by the obstetrician not to have
sexual relations. When Boykai finally began to oppose Young’s demands for sex, he became very
angry and “stopped giving the wife
money for herself and the child.”
The opinion reflects that Boykai
testified credibly. Additionally, one
of Young’s witnesses inadvertently
corroborated Boykai’s testimony.
At the conclusion of the PFA hearing, a final Protection From Abuse
order was entered against Young
for a period of one year. The order
excluded Young from the marital residence, prohibited him from
having any contact with Boykai,
and “proscribed him from possessing, transferring or acquiring firearms for the duration of the order.”
Young appealed the PFA order.
According to the opinion, the issue
of waiver arose as a result of the
trial court’s suggestion that Young’s
statement of matters complained of
on appeal was “unduly vague.” The
Superior Court held that “the trial
court was sufficiently informed so
as to capably identify and address
the issue in its opinion” and declined to deem the issue on appeal
waived. The husband’s issue on
appeal was whether the trial court
erred in entering the PFA order
“where the wife failed to establish
that she sustained ‘abuse’ as that
term is defined in the act.”
In the opinion, the Superior
Court reiterates that the standard of
review for PFA orders is whether
the trial court’s legal conclusions
were an error of law or an abuse
of discretion. The Superior Court
analyzed the definition of abuse
under the PFA Act as well as the
definitions of rape, “forcible compulsion,” and sexual assault. Under
18 Pa.C.S. §3121, rape is defined,
in part, as follows: “A person commits a felony of the first degree
when the person engages in sexual
intercourse with a complainant: (1)
by forcible compulsion.” Under
Section 3103, “forcible compulsion” is defined as “compulsion
by use of physical, intellectual,
moral, emotional or psychological force, either express or implied.” Sexual assault is defined
as “a person commits a felony of
the second degree when that person engages in sexual intercourse
or deviate sexual intercourse with
a complainant without the complainant’s consent.” According to
the opinion, Young argued that a
finding of abuse under the PFA
Act cannot occur without physical force. According to the opinion, Young stated in his appeal
brief: “Exchanging sex for support,
while unseemly, is not ‘force’ and,
consequently, is not ‘abuse’ as that
term is used in the PFA” Act.
The forcible compulsion
element of rape previously required a showing of physical force.
However, the current
definition includes intellectual, moral, emotional
or psychological force.
In response to Young’s argument,
the Superior Court stated in its
opinion: “Appellant misinterprets
the meaning of the word ‘force’ in
the context of rape in Pennsylvania.
To the extent that the trial court
concluded that the husband abused
the wife by means of exchanging
sex for financial support, such compulsion amounts to intellectual or
psychological force, thus establishing the elements of forcible rape.”
The Superior Court also highlighted
the fact that “force” is not required
to establish “abuse” under the
Protection From Abuse Act.
The heart of the matter in this
case was whether Boykai consented to the sexual intercourse. It
is clear from the opinion that she
did not. Therefore, Young’s actions are tantamount to rape and/or
sexual assault, warranting the entry
of a PFA order.
The opinion also provided history in the area of marital rape.
Previously, a marital rape exemption existed. Further, the forcible
compulsion element of rape previously required a showing of physical force. However, the current
definition includes intellectual,
moral, emotional or psychological
force to establish “forcible compulsion.” It is important to note
the cultural differences that existed in this case as well. Boykai
indicated that she did not seek
medical attention and help earlier
because she did not believe she
could call the police and state that
her husband had raped her.
This is an important case for
family law practitioners. It reiterates the fact that if a spouse does
not consent to sex and is forced
into engaging in same, the act falls
within the definition of abuse, warranting a Protection From Abuse
order. Further, withholding financial support in exchange for sex is
tantamount to “forcible compulsion” and will also warrant the
entry of a PFA order. •
Reprinted with permission from the March 11, 2014 edition
of THE LEGAL INTELLIGENCER © 2014 ALM Media
Properties, LLC. All rights reserved. Further duplication
without permission is prohibited. For information, contact
347-227-3382, reprints@alm.com or visit www.almreprints.
com. # 201-03-14-01