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No More Sex in the City?

A new law should close an “egregious loophole” that had allowed police officers who sexually assault prisoners to defend themselves by claiming their prisoner consented to the sexual activity. That’s the last thing an 18-year-old woman using the pseudonym Anna Chambers expected to hear when she filed rape charges against two New York City detectives last year.

https://www.zmolaw.com/news/wp-content/uploads/2018/04/Screen-Shot-2018-04-03-at-12.16.52-PM-300x171.pngAccording to Buzzfeed News, in September 2017, Detectives Eddie Martins and Richard Hall stopped Chambers and two friends after allegedly spotting marijuana in the front cupholder of their car. They took Chambers into custody but let her friends go. Then, according to the Buzzfeed report, Martins and Hall forced Chambers into an unmarked police van, where they took turns raping her for almost an hour. Eventually, she was released onto the side of the road. She immediately contacted a friend, who rushed her to the hospital to complete a rape kit. The DNA collected from the kit matched both Martins and Hall, according to Buzzfeed. Chambers assumed that her case against the detectives was a slam dunk: after all, there was positive proof that they had sex with her after detaining her and while they were on duty.

The last thing Chambers expected was for Martins and Hall to claim consent. Remarkably, even though it is illegal for parole officers or corrections officers to have sex with people in jail, the same standard did not apply to police officers who take people into custody. Buzzfeed reported that New York was one of 35 states with a legal loophole that permits law enforcement officials to have consensual sexual relations with detainees in their custody.

The United States Supreme Court and New York state judges have long recognized the coercive effect of being in custody. “Miranda” warnings are read to detainees for exactly this reason: so that individuals under arrest understand that they have a right to remain silent even though they cannot leave. New York Civil Rights attorney Moira Meltzer-Cohen told the Intercept, “The idea that you can’t give knowing and voluntary consent to answering questions, but you could to sex would be risible if it weren’t so horrifically nauseating.”

When people are given power over other people, abuse is inevitable. Police, especially in New York, have enormous power over the individuals they stop, question, detain, arrest and prosecute in court. The law — including the federal Civil Rights Acts — give people who suffer abuses of police power a remedy. But the ability to claim consent in sex abuse cases undermines that remedy, giving police a defense to behavior universally reviled as indefensible.

New York legislators agree. Mark Treygor, New York City Council Member for the 47th District advocated for quick legislative action to modify the penal code.  Writing on Medium, Treygor argued, “the power dynamics between a trusted agent of our criminal justice system and an individual under supervision mean that no sexual consent can be given entirely free from coercion.”

Since the investigation was published, six states have passed or drafted bills to close this loophole, including New York. Last Thursday, New York legislators unanimously passed Bill S7708, which renders a person in custody incapable of granting sexual consent to law enforcement officials. According to the New York Daily News, Governor Cuomo said the measure “closes an egregious loophole and helps protect against abuse in our justice system.”

Under the new law, police who engage in sexual conduct with detainees will have presumptively committed sexual assault or rape. This change to the New York Penal Code will make it easier for prosecutors to charge law enforcement officials who have sex with suspects in their custody. It should also make it much easier for victims of police sexual abuse to obtain damages against their abusers.

Of the new law, Chambers told BuzzFeed News that “hopefully this is a start that will help public awareness and begin changing that police culture of sexual misconduct.”