There are nationwide rules prohibiting probation officers, as well as prison and jail guards, from sexual contact with a person under their supervision. But even in the most extraordinary circumstances, law enforcement officers in 35 states can have sex with someone in their custody with minimal, or no, repercussions—and beat a sexual assault or rape charge by claiming their detainee consented.
In September 2017, two plainclothes detectives encountered two men and a woman in a parked car in Brooklyn with a cupholder full of marijuana. They let the two men go, but they took the 18-year-old woman, Anna, “into custody,” handcuffing her and leading her into the back of an unmarked van with tinted windows. For nearly an hour, Anna says, the two men—both more than 6’ to Anna’s 5’—assaulted her.
Anna said the detectives took turns raping her in the backseat as the van cruised the dark streets and as she sat handcuffed, crying and repeatedly telling them “No.” Between assaults, she said, the van pulled over so the cops could switch drivers. Less than an hour later, a few minutes’ drive from where it all began, the detectives dropped Anna off on the side of the road, a quarter-mile from a police station, surveillance footage shows. She stood on the sidewalk, her arms wrapped around her chest, looking up and down the dimly lit street and pacing slowly before borrowing a cell phone from a passerby to call a friend.
The cops made no arrest, issued no citation, filed no paperwork about the stop. Hours later, Anna and her mother went to a hospital, where Anna told nurses two detectives had sexually assaulted her, according to hospital records. Semen collected in Anna’s rape kit matched the DNA of detectives Eddie Martins, 37, and Richard Hall, 33, of the Brooklyn South narcotics unit. Both have since resigned from the force and been charged with rape.
Clear cut as this case seems, Martins and Hall could still prevail on a consent defense.
Of at least 158 law enforcement officers charged since 2006 with sexual assault, sexual battery, or unlawful sexual contact with somebody under their control, at least 26 have been acquitted or had charges dropped based on the consent defense, according to my review of a Buffalo News database of more than 700 law enforcement officers accused of sexual misconduct.
Consider what’s happened in California and Arizona under similarly unambiguous custodial circumstances.
In 2007, former Irvine, California, police officer David Alex Park was acquitted of sexual assault after claiming that the woman initiated sex to avoid getting a ticket. In 2016...former Phoenix police officer Timothy Morris was acquitted of sexual assault even though he admitted to having oral sex with a handcuffed woman in his patrol car, claiming she had come on to him.
Aside from resignation—note, “resignation” not “termination”—if Martins and Hall successfully assert a consent defense, they’ll face minimal consequences.
In most of the 35 states that do not explicitly outlaw sex between on-duty cops and detainees, including New York, an officer can claim consent and face only a misdemeanor “official misconduct” charge, which carries a maximum one-year sentence.
So far, New York state lawmakers haven’t moved to reform the law, although a member of the New York City Council has indicated he intends to attempt to do so.
Anna’s case has brought new attention to this legal loophole. On October 26, 2017, New York City Council member Mark Treyger announced that the teen’s story had inspired him to propose a bill to make it illegal for police officers to have sex with anyone in their custody. “Our laws regarding sexual consent must be brought into line with basic common sense, empathy, and human decency,” he wrote in a post on Medium, calling on state lawmakers to pass similar legislation. New York City’s two biggest police unions both declined to state whether or not they support the proposal.
Even without such a tremendous loophole—and a legal “out”—law enforcement officers wield a tremendous advantage when it comes to sexual coercion.
Policing is a male-dominated field — Department of Justice statistics show that more than 80% of officers are men — where abuse is more rampant than statistics indicate because victims are less likely to report officer misconduct. “Police abuse of authority is often concealed,” said Norm Stamper, a former Seattle police chief. “Victims fear coming forward for fear of retaliation.” Officers who rape have plenty of weapons at their disposal: the threat of arrest, the access to a victim’s personal records, and the aura of immunity that comes from carrying a badge. The most sweeping investigation into the scope of police sexual misconduct, by the Associated Press in 2015, counted 990 law enforcement officers who lost their job for sexual misconduct between 2009 and 2014.
The advantages these Brooklyn (former) detectives enjoy have made attempting to bring them to justice much more difficult, not to mention exceptionally excruciating for Anna. She’s had to tell her story over and over publicly and privately. Attorneys for the detectives dug through Anna’s social media history to try to get the district attorney to drop charges.
The legal process requires Anna to recall the events repeatedly, in detail. In the past five months, she has given statements to a series of NYPD investigators, to her lawyer, to prosecutors, to a grand jury, and to attorneys representing the city for her lawsuit against the department.
“It’s painful,” she said. “I didn’t know what to expect. I still really don’t.” To Anna, some of those sessions, especially with city attorneys, felt more like interrogations. She hadn’t thought much about the court system before all this. She didn’t know how much of her life was now open for questioning. She hadn’t seen any need to clean up her social media accounts, and didn’t know her old posts could be used as evidence that she was lying. She’d put up photos of herself in bikinis. She’d gone to a porn convention when she was 17. She’d posted on Facebook a link to a website about sex when she was 13. She has never hidden that she enjoys smoking weed. Sometimes she makes dirty jokes.
Martins’ and Hall’s lawyers are now openly trying to discredit Anna, painting her as not only a willing participant but a liar, untrustworthy. She’s now 19, and she has many hours of trial, many months of waiting, ahead.
If Martins and Hall had known that sexual contact with a detainee was illegal altogether, would they have still assaulted Anna? If they knew they couldn’t assert a consent defense, would they have pleaded guilty? The injury and injustice to Anna is not simply ongoing but amplifying as a result of this incomprehensibly reprehensible loophole for law enforcement.
