Gov. Andrew Cuomo announced on Feb. 14 that he will support the proposed amendment of sexual harassment laws to include language prohibiting police officers from engaging in sexual conduct with detainees. New York State’s sexual assault laws already specify that such actions—even when claimed to be consensual—are illegal among prison guards and probation officers.
If passed, the amendment would close a longstanding loophole that grabbed headlines in September 2017 after an 18-year-old Brooklyn girl named Anna accused two on-duty police officers of raping her in the back of an unmarked police vehicle.
The ordeal started after Anna and two male friends were in a parked car in a Brooklyn park. Two plainclothes police officers approached them, flashed their badges and began asking questions.
Her male friends were released while Anna says she was handcuffed and taken into the police vehicle, where detectives took turns raping her in the backseat while she repeatedly cried and said “no.” Surveillance footage shows the officers dropped Anna off on the side of the road, a quarter-mile from a police station. The officers filed no charges against her or filled out paperwork regarding the incident.
Evidence collected in Anna’s rape kit later that day matched the DNA of detectives Eddie Martins, 37, and Richard Hall, 33, of the Brooklyn South narcotics unit. Both have since resigned from the force and been charged with rape. However, what should have been a simple case has been anything but. Unfortunately, New York State is one of 35 states where officers can claim a detainee consented to sex to avoid any charges.
According to Buzzfeed, of the 158 law enforcement officers 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 based on the consent defense.
Some states have laws which prohibit such conduct outright. California, Washington, New Jersey, Oregon, Alaska, Arizona and Florida all have laws against officers engaging in sexual conduct with suspects in custody but New York has lagged behind.
New York State Penal Law Section 130.05 defines consent in sexual conduct and as currently written notes that a person is incapable of consent when a person is “committed to the care and custody or supervision of the state department of corrections and community supervision or a hospital…” This language does not include police officers.
By contrast, New Jersey’s sexual assault law (N.J.S.A. 2C:14-2) makes it a crime to commit a sexual act with someone if “The actor has supervisory or disciplinary power over the victim by virtue of the actor’s legal, professional, or occupational status.” This can include police officers, who have disciplinary authority of suspects in custody by virtue of their professional status as law enforcement officials. Such instances are considered aggravated sexual assault. A conviction can mean a prison sentence of 10 to 20 years, plus a possible fine of up to $200,000.
In October, when news of the charges against the officers first began making headlines, New York City Councilman Mark Treyger announced he would draft a bill similar to what other states already have. “There is no such thing as consensual sex when someone is in police custody; that is rape,” he said. However, no such bill was ever introduced to committee. In January, Cuomo included new sexual harassment rules in his state budget, but the addition of the language closing the aforementioned loophole was not announced until more than a month a later.
If you or a loved one has been cited for a criminal offense in New Jersey, contact an attorney to discuss your legal options. The lawyers of the Rosenblum Law Firm are skilled criminal defense attorneys with experience helping people in many kinds of difficult situations. Email the Rosenblum Law Firm or call 888-979-7551 today for a free consultation about your case.