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.

Forced Sex During Marriage Warrants PFA Order, Court Rules .PDF

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, or visit # 201-03-14-01