It's Still Technically Not Illegal For NYPD to Have Sex With Someone in Custody

[yuiyoshida]

Link to tweet

It should both surprise and enrage you to learn that under New York state law, it is not illegal for a law enforcement official to have sex with someone in their custody—an action for which they cannot possibly provide consent. The little-known loophole for police is now coming to the attention of local public officials thanks to a disturbing rape case in which two NYPD officers admitted to having sex with a teenage girl in their custody. The teen (and many public officials) call that rape. New York state law, however, does not.

New York City Councilman Mark Treyger, who represents the district where the alleged rape occurred, discovered the gap in the law after the lawyer for the officers claimed the sex was consensual. “Obviously, we’re all very disturbed and outraged about what transpired on the night of September 15 in my district. I was also outraged when I read the commentary from the attorney representing the detectives claiming that the sex was consensual. There’s no consent to that,” he said. “That is rape.”

“My office began to research where in the penal code that this is already a crime, and we were shocked to learn, like many, that there is no official law on the books that says that this can’t happen,” Treyger said.

Article 130.05 of the New York State penal code, which details sex offenses, does take into account potential abuses in the criminal justice system by outlining that those incarcerated or under the community supervision of corrections workers, health care providers, parole officers, and others, are incapable of giving consent. However, the law leaves out law enforcement officers who have arrested or taken someone into custody. When the Intercept asked the NYPD about the law, a spokesperson said, “it is against department policy to have sex on duty.” But, as the Intercept notes, “the law does not preclude consensual sex between an arresting officer and a person in their custody.”

Treyger’s office is currently drafting a bill that will make it a misdemeanor (the harshest penalty applicable by city law) for police officers to engage in sexual activity with someone under custody, and is asking the state legislature to amend the penal code to make it a felony offense. “We need to specifically state that police cannot do this to people in their custody,” he said. “That is rape.”

https://theslot.jezebel.com/its-still-technically-not-illegal-for-nypd-to-have-sex-1819847291

omg!

[unblock]

1. Why wouldn't ordinary rape laws apply?

I can see the need for a separate law to clarify specific circumstances like being in custody, but why couldn't they be tried under ordinary rose laws and let a jury decide if she gave consent?

[WhiskeyGrinder]

2. It's a matter of consistency throughout the criminal justice system.

Article 130.05 of the New York State penal code, which details sex offenses, does take into account potential abuses in the criminal justice system by outlining that those incarcerated or under the community supervision of corrections workers, health care providers, parole officers, and others, are incapable of giving consent. However, the law leaves out law enforcement officers who have arrested or taken someone into custody.

It's important to recognize that someone who is under the control of someone else cannot give consent. That should apply to people in police custody. Under the NYS penal code, at this point, it does not.

[unblock]

3. I get that the law could and should be clarified.

Sounds like the case would be open and shut had the law not had the oversight (at least I hope it was an oversight), but that doesn't mean a jury couldn't find them guilty under the same rape laws that apply to non police officers.

[WhiskeyGrinder]

5. The inherent inequality makes consent dubious at best, and in many cases the code recognizes that.

The law does vary, but the NYS penal code clearly has an oversight that needs to be fixed.

[Princess Turandot]

4. In case it's not clear from the tweets, the Bklyn DA has been investigating the two cops for rape..

The NYT reported that story several weeks ago.

At least one of them was indicted this week, according to a NY Times' source:

A Brooklyn grand jury has handed up an indictment in the case of an 18-year-old woman who said she was raped by two New York City police officers after they took her into custody and searched her for drugs, a person familiar with the case said on Friday.

At least one of the detectives has been charged by the grand jury, which has been hearing evidence since the alleged assault on Sept. 15, said the person familiar with the case, who spoke on the condition of anonymity because the charges have not been formally announced.

https://www.nytimes.com/2017/10/27/nyregion/indictment-in-brooklyn-rape-investigation.html

The indictment is still under seal; the GJ is may still be investigating one of them. (It appears that charges are severe for them both, but for one even more so.)

The tweet is referring to the lack of a statutory prohibition regarding sex acts between a police officer and someone in their custody. That doesn't mean that they didn't break the law by committing sexual assault. It means that if such a law existed that they would not be able to use a defense that a victim reporting a rape, if over the age of consent as is the case here, had sex with them willingly. (That is, of course, what they're claiming.)

[unblock]

6. Thank you, that clarifies the situation

So they're still getting prosecuted, it's just that the case is made harder by this legislative oversight.

In any event the "loophole" should be closed to handle future cases.