The Superior Court of Pennsylvania has decided the case of Commonwealth v. Banniger, holding that evidence that a defendant had intercourse with an unconscious person, without more, is insufficient to prove the “forcible compulsion” element in a rape or involuntary deviate sexual intercourse (“IDSI”) case where the prosecution has proceeded under the forcible compulsion subsection of either statute.

The Facts of Banniger

In Banniger, the complainant testified that when she was 15 years old, the adult defendant gave her marijuana, and she would smoke with the defendant while they were alone in the house. The defendant told her that he liked her and wanted to be with her. The victim told the defendant to stop. Shortly after that, the victim went to her room to lie down. She testified that on two occasions she was sexually assaulted by the defendant.

For the first incident, the complainant testified she awoke in her aunt’s room with her shorts pulled to the side, the defendant’s head between her legs, and with his tongue on and inside her vagina. She did not testify that she was frozen with fear, nor did she say how long the defendant continued or how the incident ended.

She testified that for the second incident, she woke up in her grandmother’s room. Her clothes were again pushed to the side and the defendant’s tongue was inside of her vagina. The defendant then pulled her pants off and inserted his penis into her vagina. The complainant, frozen in fear, just let it happen as she did not know what else to do. She then fought the defendant off because he was being forceful. The complainant ran into another room. She later told her older sister about the incident.

Following a non-jury trial, the judge found the defendant guilty of rape by forcible compulsion, involuntary deviate sexual intercourse by forcible compulsion, unlawful contact with a minor, statutory sexual assault, corruption of a minor, indecent assault of a person less than 13 years of age, involuntary deviate sexual intercourse of an unconscious person, and sexual assault. The trial court sentenced the defendant to an aggregate term of 14-34 years’ incarceration followed by three years’ reporting probation. The defendant filed a post-sentence motion. The court denied it, and the defendant appealed to the Pennsylvania Superior Court.

The Superior Court Appeal

On appeal, the defendant challenged the sufficiency of the evidence supporting the rape and IDSI - forcible compulsion convictions, arguing that he did not use force because the complainant testified that she was asleep and woke up to the sexual assaults. Both statutes have different sections that apply to the sexual assault of an unconscious person, so the defendant argued that he should have been charged under those sections rather than with forcible compulsion.

The Superior Court agreed with the general idea that the rape of a person who is asleep does not amount to forcible compulsion but affirmed the convictions nonetheless. The court reasoned that in sexual cases, the object of the force is to compel a person to engage in sexual intercourse against that person’s will. They continued that “forcible compulsion” depends on a totality of circumstances, providing a non-exhaustive list of factors to consider including age of the victim and the defendant, mental and physical conditions of the complainant and the defendant, atmosphere and physical setting in which incident took place, and whether the complainant was under duress. Ultimately, the court recognized that each case turns on its own specific facts. 

Force, however, does not necessarily require resistance from the complainant. Instead, the question is whether the defendant’s physical, intellectual, moral, emotional, or psychological force compelled the complainant to submit to intercourse against their will.

The court noted that while consent will negate finding forcible compulsion, forcible compulsion requires more than a mere lack of consent. Where lack of consent exists, but no showing of either physical force, a threat of physical force, or psychological coercion can be established, forcible compulsion does not exist.

Although an unconscious victim may not consent, not every person who has intercourse with an unconscious victim does so by forcible compulsion. Noting that while the factor involving a victim’s physical condition includes evaluating a lack of consciousness, that is only one circumstance to be considered under the totality test for forcible compulsion.

Accordingly, the court held that the mere act of intercourse with an unconscious person does not prove forcible compulsion. It may well violate other statutes, but it does not violate the specific statutes with which the defendant was charged.

The court, however, affirmed the conviction because it found that the complainant was not actually asleep for the entirety of both sexual assaults. With respect to the second incident, she testified that she woke up and was then frozen with fear as the abuse progressed. At first, she let it happen and did not resist because she was frozen with fear and did not know how to respond. She eventually fought the defendant off. Thus, under the totality of the circumstances, including the extended familial relationship, the use of marijuana, her initial unconsciousness, and her fear of the defendant’s response if she resisted, the Commonwealth proved forcible compulsion. The court therefore affirmed the conviction.

The Take away

Although things did not work out for this particular defendant, this is a pretty good opinion from the Superior Court in terms of analyzing the statute and reaching a logical conclusion. As the statute says, Rape or IDSI by forcible compulsion requires some level of actual force - psychological, physical, or otherwise, in order for the statute to apply. The elements are not met simply because penetration occurred without consent. Instead, that is essentially the definition of the somewhat less serious charge of sexual assault as a felony of the second degree. Therefore, sexual intercourse with someone who is totally unconscious or asleep is generally not going to be rape or IDSI by forcible compulsion. The problem for this defendant, however, is that the complainant testified that she was not totally asleep for the entirety of the incident and that she had other reasons for not resisting.

When fighting any case, it is important that the defense attorney be familiar with the elements of the statute. The attorney should never assume that the Commonwealth has charged the right statute or subsection of a statute. In many cases, the defense to criminal charges may be a legal one rather than a factual one, and a legal one that ends in an acquittal is just as good as a factual one that ends in an acquittal.

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