In 2017, two New York police officers arrested an eighteen-year-old woman after she and her two male friends were found with a small amount of marijuana. The officers told her two male friends they were “free to go,” and proceeded to handcuff her and place her in the back of an unmarked police van. The officers allegedly raped her and eventually left her on the corner of the street. After the alleged assault, the victim’s mother took her to a hospital where the medical staff performed a sexual assault forensic exam, known as a “rape kit,” and the DNA matched both police officers. However, soon after the district attorney charged the officers with rape, he dropped the charges when the judge questioned the victim’s credibility. The officers served no jail time and were given five years’ probation on charges unrelated to sexual assault including bribery.
At the time of the alleged assault, New York state law allowed police officers to mount a defense that the individual in their custody consented to the sexual conduct. Although the Prison Rape Elimination Act criminalizes sexual relations between law enforcement officials and inmates, the law did not extend to detainees. This loophole was often referred to as the consent in custody loophole. In 2017, thirty-five states had not yet defined sex between police officers and persons in their custody as nonconsensual. In response to the 2017 case, New York passed a law banning this technicality, recognizing that persons in police custody are unable to consent, however, many legislators in remaining states have been slow to adopt similar legislation. In fact, the issue has only recently been federally addressed when Congress passed the Closing the Law Enforcement Consent Loophole Act of 2019 as part of the Consolidated Appropriations Act of 2022.
With the passing of the Closing the Law Enforcement Consent Loophole Act, legislators have made a positive step in addressing police sexual violence. However, the consent in custody loophole was only one way that law enforcement abused their power and sexually assaulted individuals in their custody. The scale of police sexual violence is staggering. Behind excessive force, sexual misconduct is the most common type of violence committed by law enforcement. In fact, a law enforcement official is caught in an instance of sexual misconduct every five days. Women of color and LGBTQ+ individuals are disproportionately affected by this violence as officers often target communities that have been historically marginalized and oppressed. Often, survivors feel that they are unable to turn to law enforcement for help and protection due to fears of retaliation and mistrust. Thus, many survivors choose not to report their assaults, which likely means that the number of sexual assaults by police officers is much greater than reported.
Persons in prostitution are also at an increased risk of police sexual violence because they face a very real possibility of arrest if they choose not to comply with an officer. A study in Chicago found that 24% of women in prostitution who reported that they were raped, further explained that a police officer was the perpetrator. Even worse, there are cases where police officers solicit sex from prostituted persons and then arrest the victim after the assault. Although many state courts have criminalized this practice, including Pennsylvania, this form of sexual violence continues.
Law enforcement officials must be held accountable when they abuse those they have sworn to protect. Below are a few steps you can take to remain informed on this issue:
- Read the CSE Institute’s 2021 Annual Report that addresses abuses of power by law enforcement.
- Use your voice: Reach out to representatives in your community and ask what they are doing to address these issues.
- Listen to survivors’ voices and help amplify them: Hearing first-hand accounts of the impact of police sexual violence can help increase awareness of this issue as well as inform best practices to support persons who are sexually assaulted.
This piece is part of our first-year law student blog series. Congratulations to author Michaela Kelly on being chosen!
All views expressed herein are personal to the author and do not necessarily reflect the views of the Villanova University Charles Widger School of Law or of Villanova University.