State lawmakers in New York passed a bill Thursday to prohibit cops from having sex with people in custody, closing a legal loophole that has let police avoid sexual assault convictions by claiming sex with detainees was consensual. The bill was introduced in response to allegations that two on-duty New York City Police Department officers raped a handcuffed woman in their police van in September.
In February, BuzzFeed News reported that New York was one of 35 states that do not explicitly deem encounters between cops and those in their custody as sexual assault. In the weeks since, legislators in at least six states have introduced or begun drafting bills to change these statutes.
Of at least 158 law enforcement officers nationwide 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 after claiming the encounters were consensual, according to a BuzzFeed News review of a Buffalo News database. The bill passed Thursday states that someone in police custody lacks the ability to consent to sex with an officer.
The loophole in New York law first drew public attention after an 18-year-old woman, who uses the pseudonym Anna Chambers, reported she was sexually assaulted by two detectives who’d detained her after finding weed and loose pills in the car she was in. DNA from a rape kit matched narcotics detectives Eddie Martins and Richard Hall. Both have pleaded not guilty to rape and other charges and are awaiting trial.
“Hopefully this is a start that will help public awareness and begin changing that police culture of sexual misconduct,” Chambers told BuzzFeed News on Friday.
While the men have yet to give their accounts of the incident, Martins’ lawyer, Mark Bederow, summed up their defense by claiming, “There was no nonconsensual sexual encounter.”
As BuzzFeed reported, because of the loophole, the case centers on whether there was consent, putting the word of the men, who’ve resigned from the force, against Chambers’. Lawyers for the defense have cited social media comments, photos, and posts by Chambers, which they say undermine her credibility, and have suggested she initiated the sexual encounter.
In October, New York City Council member Mark Treyger, who represents the Brooklyn district where the alleged crime occurred, called on the state to pass legislation to close the loophole.
“I am proud that our leaders at the state level have recognized the need to finally close this antiquated loophole and ensure that our laws on sexual consent align with basic common sense and human decency,” Treyger told BuzzFeed News on Friday. “This is such a common sense issue,” he added. “There is no reason, no excuse that similar loopholes should not be closed in other parts of the country where they may still be in existence.”
In the days following BuzzFeed’s story, others, including New York City Mayor Bill de Blasio, Maryland gubernatorial candidate Ben Jealous, and editorial boards at the New York Times and the Dallas Morning News, announced their support for changes to police sexual assault laws.
“I am proud that this common sense reform closes this egregious loophole once and for all, and I urge other states to follow suit,” New York Governor Andrew Cuomo, who lobbied for the bill’s passage, told BuzzFeed News on Saturday.
The way sexual assault laws in New York and most other states are currently written, an officer can admit to having sex with a person in their custody and be convicted of no more than a misdemeanor for official misconduct. The specific statutes vary among states: a Texas law classifies sex in custody as an administrative offense, punishable by a maximum two-year prison sentence; in California, the crime is classified as a misdemeanor for a first offender and as a felony for any additional violation; in several other states, sexual assault laws require an accuser to prove that an officer used their authority in an overt effort to coerce. In states without the loophole, sex in custody is deemed an automatic sex crime.
“We want this to be a national issue,” said Chambers’ lawyer, Mike David. “All the other states that don’t have this statute, we’re calling on them to make these changes.”