Forced Sex During Marriage Can Lead to a Protection From Abuse Order

April 21, 2014 | By Michael E. Bertin

Did you know that a spouse can get a protection from abuse order against the other for forced sex? That is what happened in the recent case of Boykai v. Young, 2004 Pa. Super. 4 (January 7, 2014). 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. . . .”  Pursuant to the Pennsylvania Superior Court’s holding in the Boykai case, 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. Ms. Boykai arrived in the United States in 2004 and Mr. Young arrived in 2005. The parties met in 2010 and, after Ms. Boykai became pregnant, the parties married in 2011 and had one child. Ms. Boykai’s main allegation was that her husband forced her to have sex against her will on numerous occasions. She testified that this even occurred when she was very pregnant as well as other times after they were married. Ms. Boykai also testified “in some detail” as to how her husband would physically overpower her for sex. According to the Superior Court’s opinion: “She stated he wanted intercourse three times a day, seven days a week.” The Court’s opinion reflects that her husband 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 Ms. Boykai finally began to oppose her husband’s demands for sex, Mr. Young became very angry and stopped giving money to her and their child.  At the conclusion of the PFA hearing, a final protection from abuse order was entered against Mr. Young for a period of one year. The order excluded Mr. Young from the marital residence, prohibited him from having any contact with Ms. Boykai, and forbid him from possessing, transferring or acquiring firearms for the duration of the order.

Mr. Young appealed the PFA Order arguing that the trial court made an error in entering the PFA Order claiming his wife failed to establish that she sustained “abuse” as that term is defined in the Act.

The Superior Court highlighted the fact that “force” is not required to establish “abuse” under the Protection from Abuse Act.

The heart of matter in this case was whether Ms. Boykai consented to the sexual intercourse. It is clear from the Superior Court’s opinion that she did not. Therefore, based on the Superior Court’s opinion, Mr. Young’s actions amount to rape and/or sexual assault, warranting the entry of a PFA order and as such the trial court was correct in its decision.

It is important to note the cultural differences that existed in this case as well. The parties were from Africa and Ms. 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 case reiterates the fact that if a spouse does not consent to sex and is forced into engaging in sex, the act falls within the definition of abuse warranting a Protection from Abuse Order. Further, withholding financial support in exchange for sex is the equivalent to “forcible compulsion” and will also warrant the entry of a PFA Order.

About the Authors

Michael E. Bertin


Main Line Family Law Attorney Michael co-chairs Obermayer’s Family Law Group. He focuses his practice on child custody, child support, and divorce, including the negotiation and litigation of domestic relations cases, divorce,...

Read More by Author