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COMMONWEALTH PENNSYLVANIA v. DANIEL NELSON HITCHCOCK (11/08/89)

decided: November 8, 1989.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
DANIEL NELSON HITCHCOCK, APPELLANT



Appeal from the Order of the Superior Court entered December 9, 1987 at No. 1742 Pittsburgh 1986 affirming the Judgment of Sentence of the Court of Common Pleas of Mercer County, Criminal Division, entered November 10, 1986. 374 Pa. Super. 643, 538 A.2d 939 (1987).

COUNSEL

Christopher J. St. John, Office of the Public Defender, Mercer, for appellant.

James P. Epstein, Dist. Atty., Linda Hoelzle Barr, Asst. Dist. Atty., Mercer, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. Papadakos, J., files a concurring opinion. Nix, C.j., files a concurring and dissenting opinion in which Zappala, J., joins. Zappala, J., files a concurring and dissenting opinion.

Author: Mcdermott

[ 523 Pa. Page 249]

OPINION

The appellant in this case conducted a campaign of settled sexual aggression against his twelve-year-old daughter. He

[ 523 Pa. Page 250]

    was convicted, at a bench trial, of rape, 18 Pa.C.S. § 3121; statutory rape, 18 Pa.C.S. § 3122; involuntary deviate sexual intercourse, 18 Pa.C.S. § 3123; two counts of indecent assault, 18 Pa.C.S. §§ 3126(1) and (3); corruption of minors, 18 Pa.C.S. § 6301 and criminal attempt to commit rape, 18 Pa.C.S. § 901. In this appeal he concedes that whatever else he did, and he did everything his sordid imagination could contrive,*fn1 he did not rape his daughter as rape is traditionally defined. Starkly put, he contends that anal intercourse is not rape.

First, however, we shall put to rest appellant's peculiar sensitivity; anal penetration by a male of another person, not his spouse, is rape.

Rape in its traditional sense is a male crime, the essence of which is the forcible sexual penetration of a female. Previous to the Pennsylvania Crimes Code of 1972,*fn2 the traditional concept was the forcible vaginal penetration of a woman. That definition has been amplified into forcible "sexual intercourse" of another person not in a spousal relation. The statute defines sexual intercourse as:

"Sexual intercourse." In addition to its ordinary meaning, includes intercourse ...


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