In 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 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.
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.
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.
The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.
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, email@example.com or visit www.almreprints.com. # 201-03-14-01