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Legal Loophole Allows Cops To Rape Detainees In Custody And Get Away With It

People are reacting with confusion, shock, and outrage after it was revealed that sex between an arresting officer and a detainee in custody is not necessarily “rape” under the law. As it turns out, the law recognizes that no consensual sex can take place between prison guards and their inmates, or parole officers and parolees, but fail to cover police with detainees yet to be placed in cells.

The disturbing flaw in the penal code was exposed after New York City Council Member Mark Treyger learned about Anna Chambers’s case, The Intercept reports.

News of the alleged rape of an 18-year-old by two undercover detectives from the New York Police Department, while she was detained in their car, was disturbing enough. When the Treyger learned that officers Eddie Martins and Richard Hall had claimed that the sex was consensual, and that consent in police custody was even a possibility under New York law, he was appalled and decided to jump into action.

Because of Treyger’s actions, both officers were indicted on first-degree rape charges on Monday. But for the Brooklyn City Council Member and others, the very idea that a consent claim was legally possible remains a problem.

Now, Treyger, along with colleagues on both the city council and in the New York state house, are working to correct the law. He is drafting legislation that would make sexual consent for arresting officers a legal impossibility.

“People are shocked that this is not already a law,” said Treyger, who told me that there was a “coalition” of his colleagues both in city council and lawmakers at the state level who, struck by the Chambers case, are eager to see a swift change in legislation. New York City Council cannot change rape laws alone; Treyger’s bill could at most introduce police rape in this context as a misdemeanor. It would take a state-level intervention to make sex in police custody an automatic felony rape.

As noted by The Intercept:

Cops who rape most likely do so thinking they can later claim consent in court to avoid the consequences of their behavior. A legislative shift is no doubt important to preclude even an attempt at a consent defense in future cases like Chambers’s.

As Acting Brooklyn District Attorney Eric Gonzalez said at the officers’ arraignment on Monday, “To think that these are grown men in a position of power, who are blaming this on an 18-year-old girl, speaks in my opinion to desperation.”

The D.A.’s comment, while a recognition of the problem of coercive police power at play here, expressed a view that the officers were clutching at straws in the face of evidence.

Mark Treyger

New York City Council Member Mark Treyger. Photo: The intercept

A hospital rape kit found Hall’s and Martins’s DNA on Chambers and, according to the teen’s attorney Michael David, two witnesses saw her handcuffed and put into the police car.

“Our laws regarding sexual consent and the police must be brought into line with basic common sense and human decency,” Treyger said. But, even on a state level, the most a legislative effort like this could do is bring consent laws for police in line with those for corrections officers. And to look at prison rape statistics is to understand that the problem here goes way beyond the letter of the law. A 2014 Justice Department study found that of the 8,000 reports of abuse logged yearly by correctional administrators, nearly half involved corrections officers—and the statistics are just for reported incidents. The study noted that even in reported cases, “prosecution is extremely rare.”

The legal system needs to shift away from presuming the credibility of police over that of their accusers.

Without DNA or other strong evidence as in the Chambers case, cops could well deny that any sexual contact happened, and a law that deems all sexual contact to be rape would be of little help to a victim seeking justice. The lesson of the Chambers case cannot simply be that the law needs to change, but rather that the legal system needs to shift away from presuming the credibility of police over that of their accusers.

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