When Cops Rape Those in Custody: Closing the Law Enforcement Consent Loophole

Federal law still allows officers accused of rape to claim that a person in their custody consented to sex—but that may soon change.

When Cops Rape Those in Custody: Closing the Law Enforcement Consent Loophole
Studies reveal widespread police sexual abuse of women under their control. (nereocystis / Flickr)

In 2017, two New York police officers in their thirties arrested 18-year-old Anna Chambers for marijuana possession, then both had sex with her in the back of their unmarked police car. Afterwards, the cops left her on a street corner. When the teen reported she had been raped, the officers claimed the sex was consensual—despite the fact that the victim was handcuffed and under their control during the encounter. 

New York state law at the time allowed officers accused of rape to claim that a person in their custody consented to sex. In March of 2019, prosecutors dropped the rape charges against the men, who later pled guilty to other lesser charges. The court sentenced them to five years of probation. They got no jail time

At the time Anna Chambers brought charges against the two police officers, 35 states did not expressly define all sex between police officers and detainees as non-consensual. The Chambers case led the New York Assembly to pass a law in 2018 banning police from having sex with people in their custody. Since then several more states have taken steps to close the loophole, including Colorado, Illinois, Kansas, Louisiana, Maryland, Massachusetts, Minnesota, New Hampshire, Pennsylvania, Rhode Island, South Carolina and Texas. Federal law, however, still allows the consent defense—but that may soon change.

Earlier this month, the U.S. House of Representatives passed the Closing the Law Enforcement Consent Loophole Act, introduced by Reps. Jackie Speier (D-Calif.) and David Joyce (R-Ohio). The law would make it a crime for federal law enforcement officers to engage in a sexual act with anyone in their custody, regardless of consent. This law is part of the George Floyd Justice in Policing Act.

“There is no consent when one person is exercising the power of law enforcement and the other is handcuffed or in custody,” said Rep. Speier. “My bill would close a dangerous legal loophole that has allowed law enforcement officers to claim consent as a defense against accusations of sexual assault.”

Studies reveal widespread police sexual abuse of women under their control. These men use their law enforcement authority to coerce those in custody into sex—disproportionately targeting young women, low-income women and women of color. In a notorious 2015 case, a jury convicted police officer Daniel Hortzclaw on five counts of rape and 13 other counts of sexual assault against eight Black women.

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In September 2003, Congress passed the Prison Rape Elimination Act, which criminalized any sexual relationship between officials and people incarcerated in federal prisons. “Even if a sexual act would have been considered consensual if it occurred outside of a prison, by statute it is criminal sexual abuse when it occurs inside a prison,” the Department of Justice Office of Inspector General wrote in an April 2005 report

This law, however, does not apply to those in police custody who have not been convicted of a crime, nor does it apply to detainees in state prisons, local jails or ICE detention centers. As a result, accused police can, and often do, argue a consent defense if detainees accuse them of rape. 

“As there is an inherent imbalance of power and authority between an officer and detainee, there is no situation in which consent could be distinguished from coercion,” said Rep. Joyce. “I’m proud to work across the aisle with Rep. Speier to close this dangerous loophole and increase accountability in our justice system by preventing bad actors in law enforcement from claiming consent as a viable defense against accusations of sexual assault and rape.”

In addition to criminalizing police-detainee sex, the Closing the Law Enforcement Consent Loophole Act will also require states to submit information on the number of complaints made to law enforcement agencies regarding an officer engaging in a sexual act with anyone in their custody to the U.S. Attorney General on an annual basis. Those reports will then be sent to Congress for review. The legislation also incentivizes states to adopt similar laws by requiring them in order to be eligible for federal funding.

“Sexual abuse is the second most common form of police misconduct, and such abuse of power can never be tolerated,” said Rep. Speier.  “I urge the Senate to swiftly take up the House-passed George Floyd Justice in Policing Act, which includes this important provision.”

Go in-depth on this conversation by tuning into Episode 1 of “On the Issues with Michele Goodwin”: Policing in America: A Tale of Race, Sex and Violence (with L. Song Richardson, Anne Li Kringen, Laura Goodman and Deirdre Fishel) or Mass Incarceration: Don’t Forget About the Women (with Piper Kerman, Kamilah Newton and Sue Ellen Allen).

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Carrie N. Baker, J.D., Ph.D., is the Sylvia Dlugasch Bauman professor of American Studies and the chair of the Program for the Study of Women and Gender at Smith College. She is a contributing editor at Ms. magazine. You can contact Dr. Baker at cbaker@msmagazine.com or follow her on Twitter @CarrieNBaker.