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Can a Person in Police Custody Consent to Sexual Contact?



In August 2019, two former NYPD detectives who were charged with raping a handcuffed 18-year-old woman in their custody pleaded guilty to lesser charges and were sentenced to five years of probation.


The victim alleged she had been sexually assaulted in September of 2017 by Eddie Martins and Richard Hall, who were charged with felony sex crimes based on DNA evidence. The two officers responded by saying the sex was consensual and they were therefore innocent. While the issue of consent is at the heart of most sexual assault and rape cases, the allegations against the New York police officers raise a unique question: Can someone who is in police custody consent to sexual contact with their arresting officer?


Experts say that allowing police to have consensual sex with those in their custody makes it virtually impossible to determine whether someone consented or went along with the sexual contact out of fear or because they believed it was their only option. Members of law enforcement and the policing community largely have agreed with the view that a detainee cannot consent while in custody.


However, police officers have tremendous authority over people they place in custody, and they can use that authority to convince a detainee to engage in sex in exchange for release or leniency. It is, in fact, a practice that is widespread: A law enforcement official was caught in a case of sexual abuse or misconduct at least every five days over the last decide.


The Buffalo News conducted a national analysis of sexual encounters between police officers and detainees and found more than 700 credible cases over a 10-year period. Incidents ranged from pulling over drivers to fish for dates and extorting sexual favors by threatening arrest to committing rapes. The numbers are almost certainly higher, since victims may be less likely to report offenses when they fear it will be their word against a police officer's.


Authorities have long held that law enforcement officials should not have sexual relationships with inmates in the nation’s jails and prisons. Congress unanimously passed the Prison Rape Elimination Act (PREA) in 2003, promoting the development of a “zero tolerance” policy for rape in in Federal, State and local institutions.


All 50 states subsequently passed legislation criminalizing sexual conduct between prison or parole officers and their inmates or parolees. However, many states, including New York, did not bar sexual conduct between law enforcement officers and those they arrest, permitting officers to use consent as a defense to sexual assault allegations.


Within months of the alleged attack on Chambers, New York lawmakers passed a bill that criminalized any sexual encounter, consensual or nonconsensual, between an officer and an individual in his or her custody. Unfortunately, the new law could not be applied retroactively to the two officers in the Chambers case, who will not be serving prison time.


Other states, including Maryland, Kansas and Louisiana, have since passed or are currently considering similar legislation. In November 2019, Pennsylvania lawmakers proposed "no consent in custody" legislation to change the way police officers are held accountable and to protect those in their custody. If the legislation is passed, any sexual contact between law enforcement and someone in custody would be considered a third-degree felony.


Every professional in a position of authority should know not to engage in sexual contact with someone they have in custody, regardless of whether there are specified rules governing such behavior. If you or someone you know believes they have been a victim of police sexual misconduct, we are here to provide advice and counsel. Call 973-509-8500 x213 or email us at LFarber@LFarberLaw.com.


The contents of this writing are intended for general information purposes only and should not be construed as legal advice or opinion in any specific facts or circumstances.

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973-509-8500 

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Montclair, NJ 07042

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