Too Much Sex is Grounds for Restraining Order

One of the first published family law decisions this year is Boykai v. Young, 2014 PA Super 4  (January 7, 2014), a protection from abuse action arising from Bucks County. In Boykai, a husband was evicted from the marital residence and prohibited from having any contact with his wife for a period of one year, based upon evidence that he forced her to have too much sex. During the marriage, according to Wife’s testimony, Husband demanded sex three times per day, seven days a week. After Wife became pregnant and refused his advances, Husband forced himself on her several times. He also forced himself on her at least once in the month after their child was delivered. Husband denied the allegations, but his own witness undermined his denials.

The trial court found that Wife presented credible grounds for a PFA order for a period of one year. Husband appealed, arguing that the conduct described by Wife, even if true, did not constitute “abuse” under the PFA statute. Examining the language of 23 Pa.C.S. § 6102, the Superior Court noted that “abuse” specifically includes sexual assault, indecent assault, and rape. The Court also noted that the marital rape exemption was abolished from Pennsylvania’s criminal laws in the 1980’s.  The crime of rape no longer requires physical force; sexual intercourse that is compelled by “intellectual, moral, emotional, or psychological force” may qualify under the criminal statute. The fact that Wife did not report the assaults for over a year was not held against her. She explained that she did not imagine she could report such behavior to the police.

This case presents a clear fact pattern from which one can reasonably conclude that the trial court did the right thing. The wife in Boykai presented strong evidence of a pattern of sexual assault. Yet, one wonders how the court might approach cases where the facts are more limited and subtle. Given the consequences of a PFA order, particularly on custody of children and possession of one’s residence, how might a court approach a case where a spouse claims a single incident of “intellectual, moral, emotional or psychological” force, particularly if the facts are in dispute?