On Thursday, lawmakers in the state of New York passed a bill prohibiting cops from having sex with people in custody, thus closing off a loophole that would enable police officers who've been accused of sexually assaulting or raping detainees to claim the sex was consensual.
According to the text of the bill, which was publicly backed by Gov. Andrew Cuomo and will be signed into law, the goal is to establish that people in detention or in custody are not legally capable of consenting to sexual activity.
AN ACT to amend the penal law, in relation to establishing incapacity to consent when a person is under arrest, in detention or otherwise in actual custody.
The bill was reportedly authored and proposed in response to a report by BuzzFeed News last month, highlighting the case of an 18-year-old woman named Anna, who alleged she was sexually assaulted by a pair of former NYPD officers, Richard Hall and Eddie Martins. They are still pending trial, and have pleaded not guilty, arguing that the sex was consensual. Both Hall and Martins have reportedly retired from the force following the charges.
The story shone a light on the various state laws relating to sexual consent while in custody, revealing that 35 states throughout the country actually allow for consensual sex between police officers and people in custody. Under these circumstances, allegations of rape or sexual assault become questions of consent rather than abuse of power, with the detainee's word up against that of the officer they're accusing.
The potential perils of allowing for the notion of consensual sexual activity between a police officer and someone under their custody are obvious. There are few power imbalances in American life more sharp than that between a law enforcement officer and a civilian, and that becomes even more significant when the civilian is actively being detained by the officer.
Owing to that drastic power imbalance, and the fact that the person being detained might reasonably fear legal repercussions or other forms of abuse of power if they refused to consent, it's easy to see why the New York legislature decided to pass this bill.
That's before even considering the challenges a citizen might face in pressing charges for sexual assault after the fact, if the only evidence of consent or non-consent comes down to their word against that of a police officer.
The stated justification for the new law, as laid out in the bill's text, is as follows. It specifically cites the case detailed in BuzzFeed's Feb. 7 report, characterizing the two officers as attempting to "use a loophole in the state penal code."
On September 15, 2017, two Brooklyn detectives allegedly forced an 18 year-old woman to perform sex acts in exchange for being released without being charged. The officers, attempting to use a loophole in the state penal code, have claimed that the sex was consensual.
While state law prohibits sexual contact between corrections officers and parole officers and those in their custody, the penal code does not include a similar provision for police officers. This bill would amend state law to ensure that incidents of sexual contact between a police officer and someone under arrest, temporarily detained, or otherwise subject to law enforcement activity would also be prohibited under the penal code.
It remains to be seen whether more states will follow New York's lead on this issue. If you're curious whether your state lacks statutory language specifically forbidding sexual contact between police officers and people in their custody, BuzzFeed's report from last month includes a map showing everywhere the loophole still exists.