Lawmakers are celebrating the recent passage of legislation in New York state eliminating the option for a police officer charged with sexual assault to assert a defense that a person “under arrest, in detention, or in actual custody” consented to the act. The provision responds to the case of Anna Chambers, the Brooklyn teen who says that in September 2017 she was forced to perform oral sex on, and was raped by, two police officers in the back of a New York Police Department van while under arrest for being in a park after dark and for possession of a small amount of drugs. Both officers—whose DNA was found on Chambers—claim the acts were consensual.
While shocking, Chambers’ case is far from unusual, and consistent with national patterns of police sexual violence during traffic stops, and with officers’ tendencies to target teens and people accused of “broken windows” and drug offenses. The CATO Institute found sexual misconduct to be the second most frequently reported form of police misconduct after excessive force. A Buffalo News investigation found that an officer has been caught in an act of sexual misconduct every five days over the past decade—and in more than 70 percent of cases, officers targeted “motorists, crime victims, informants, students and young people in job-shadowing programs.” Researchers agree these numbers represent just the tip of the iceberg.
There is no question that the New York legislation is a win: A survivor of custodial sexual assault by a police officer should never have to argue the question of consent. And it is compelling to claim victory when any action is taken on an issue that has gone so long ignored—particularly in times like these, when problems loom large, complex, and terrifying, and victories are so few and far between.
But we can’t stop here. We can and must do more for survivors sexually assaulted by police officers. While an important and necessary step in the right direction, New York’s new legislation is far from a comprehensive solution to a pervasive and systemic problem that extends far beyond its reach.
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Discussion around the bill overstates its likely impact, and features dangerous misstatements of the law. News coverage has touted the legislative change as an outright ban on officers engaging in sex with people in custody. In fact, all the legislation does is eliminate the possibility of an officer raising a defense of consent in the event criminal sexual assault charges are ever filed against them. Yet no charges are brought in the vast majority of cases.
One article on the new law includes the misleading statement that the states in which officers can assert a consent defense “do not explicitly deem encounters between cops and those in their custody as sexual assault” as a matter of law. But it is and remains a crime in all 50 states for anyone, including police officers, to commit sexual assault under any circumstances. There is no “loophole” allowing police officers to engage in sexual assault—just an affirmative defense an officer has to prove and the prosecution has to overcome. An officer can still be charged and convicted of sexual assault in any state, regardless of whether a consent defense is available to them.
To be crystal clear, in no state do police officers have legal license to engage in sexual assault.
The reality is that in every state, including states that have eliminated the consent defense, officers are all too often allowed to act as though they do. Most departments don’t even have a policy or training explicitly telling police officers that sexual harassment and assault of members of the public is prohibited. Even fewer engage in active public education, prevention, and detection efforts or ensure effective accountability.
Legislative “fixes” limited to circumstances in which people are “in custody” don’t go far enough. For instance, they might not reach women like “Lorraine,” who was extorted for sex by an officer under circumstances where she was not necessarily under arrest or in official detention. According to testimony submitted by Baltimore’s Power Inside, a human rights and harm reduction organization that serves survivors of gender-based violence, in support of pending legislation in Maryland:
Lorraine (not her real name) was repeatedly being coerced to have sex with an on duty, uniformed police officer, in exchange the officer would give her food and money for drugs. She was homeless, lived in an abandoned house, and was drug addicted at the time.
Interviewer: “If you weren’t homeless or you weren’t addicted, would you have had sex with him [the police officer]?”
Lorraine: “No, I know I wouldn’t do it. I feel as though he was an officer of the law, he should’ve gotten me help. Instead of giving me help, he participated in my addiction and kept me strung out longer. I don’t appreciate that.
The New York legislation doesn’t reach documented and pervasive patterns of sexual assault by police officers responding to calls for assistance, targeting victims of violence, preying on young people involved in “Explorer” and other youth engagement programs, or sexually harassing and assaulting young women in schools. In each of these contexts, police officers wield tremendous power over vulnerable people to pressure, extort, or force sex. But the people they are targeting are not suspects, nor are they technically in police “custody.” For example, New York’s new legislation likely wouldn’t change the outcome in the case of Franklin Mata and Kenneth Moreno, who claimed that sexual contact with a woman they were called to assist because she was intoxicated was consensual, and denied her charge of rape.
It also wouldn’t reach situations in which police officers abuse the power of the badge even when off-duty—sometimes using threats of arrest, tickets, removal of children, and service weapons to commit sexual assault against people who are not officially “in custody.”
And, ultimately, fixes that focus on criminal prosecutions only come into play long after the assault has taken place, and do little to stop police sexual assaults from happening in the first place or to catch officers who engage in such offenses early on and remove them from the force.
They also leave out far too many survivors of sexual assault by police officers because so few cases get that far. Only a third of all sexual assaults are ever reported to police. Imagine how much lower that number is for sexual assaults perpetrated by the people we are supposed to report it to. In the words of former Portland, Oregon, police chief Penny Harrington, “The women are terrified. Who are they going to call? It’s the police who are abusing them.”
For survivors too afraid to report an assault by an officer for fear of retaliation, of being re-traumatized by an investigation and public trial, or of being charged with a crime instead of protected, solutions relying exclusively on criminal prosecutions are cold comfort.
Even if a survivor overcomes the many obstacles to coming forward, for a case to get to the point of a criminal trial, investigating officers and prosecutors must believe the survivor and deem them a victim worthy of a prosecution. Sexual assaults of Black women, Native women, women of color, LGBTQ people, people in the sex trades, or people who use alcohol or drugs, are often dismissed—particularly if the person they accuse is a police officer—because the public and prosecutors are less likely to take them seriously, and juries are less likely to convict. Police officers know this, and choose their targets accordingly.
And they are too often proven correct. In one set of cases I described in Invisible No More, the Eugene, Oregon, police department dismissed the complaints of dozens of victims who came forward over a decade as “the grumblings of junkies and prostitutes” before criminal charges were eventually brought against officer Roger Magaña. More recently, the U.S. Department of Justice’s Baltimore investigation found a pattern of shoddy and incomplete internal investigations of complaints of police sexual assault and extortion against women in the sex trades. These are but two examples among many. One study found that in 40 percent of cases of sexual misconduct by police officers, the officer had already been accused between two and 20 times before they were convicted of a criminal offense.
Lawmakers in New York and in other states can’t stop at eliminating consent defenses or passing criminal legislation. The sexual abuse of members of the public by those charged with their protection surely demands a much more expansive response.
At a minimum, they need to follow the recommendations of the (former) President’s Task Force on 21st Century Policing and the International Association of Chiefs of Police, as well as the Justice Department’s Guidance on Gender Bias in Policing, and ensure that all departments within their jurisdiction are required to adopt and effectively enforce policies and practices that prevent, detect, and ensure accountability for all forms of sexual violence by police officers—including sexual harassment, which is often a precursor to sexual violence. They must mandate that such policies and practices reach all contexts in which police sexual violence takes place, and all people targeted, including members of the general public who are not in police custody, such as victims of crime and young people in schools and youth programs. They should study patterns and common sites of police sexual misconduct and engage in targeted prevention and detection. They could start by giving survivors of police sexual violence somewhere to report other than the police, and alternative pathways to accountability beyond criminal prosecutions. There is an abundance of research, resources, and recommendations for change available to policymakers who want to learn and do more.
As we kick off Sexual Assault Awareness Month, let us respond to Chambers’ charge to change the “police culture of sexual misconduct,” and commit to pursuing comprehensive solutions that strike at the root of a systemic problem, rather than limiting our response to feel-good fixes that leave the vast majority without remedy or redress.