Congress Has Closed The Loophole That Allowed Federal Officers To Claim Sex With A Detainee Is Consensual

After BuzzFeed News reported that the loophole existed in 35 states in 2018, six states changed their police sexual misconduct laws and the federal bill was first proposed.

Congress passed a bill last week explicitly prohibiting federal law enforcement officers from having sex with people in their custody, closing a loophole that previously allowed them to avoid a rape conviction by claiming such an encounter was consensual.

The legal loophole gained widespread attention in 2018, after an 18-year-old woman in New York, Anna Chambers, said that two detectives raped her inside their police van. The detectives, who have since resigned, said she consented. Prosecutors ultimately dropped the sexual assault charges, and the men were sentenced to five years of probation after pleading guilty to bribery and official misconduct.

In February 2018, BuzzFeed News reported that laws in 35 states allowed police officers to claim that a person in their custody consented to sex, and that of at least 158 law enforcement officers charged with sexual assault, sexual battery, or unlawful sexual contact with somebody under their control from 2006 to 2018, at least 26 were acquitted or had charges dropped based on the consent defense.

“I think there was uniform recognition that this was egregious,” said the act’s lead sponsor, Rep. Jackie Speier, who said that she first learned of the legal loophole from the BuzzFeed News story. “It shocked the consciousness.”

In the months following the story’s publication, six states changed their police sexual misconduct laws to bar officers from claiming consensual sex with a detainee: New York, Maryland, Kansas, New Hampshire, Illinois, and Vermont. Speier was among the Congress members who proposed a similar law at the federal level in July 2018, but it was part of a wider bill that didn’t pass due to disputes over other proposals, such as expanding restrictions on gun access for people convicted of domestic violence offenses.

Last week, though, the Closing the Law Enforcement Consent Loophole Act passed the House and Senate as part of a broader appropriations bill. The act also requires states that receive certain federal grants to annually report to the Department of Justice the number of complaints alleging a sexual encounter between a local law enforcement officer and a person in their custody.

“Over the course of three years it became law,” Speier said in an interview. “And you should take credit for it.”

While laws in all states bar probation officers and prison and jail guards from having sex with people who are incarcerated, most state legal codes don’t include police officers in the language of their sexual abuse provisions, nor specify that sexual encounters between law enforcement agents and people in their custody cannot be consensual, according to a 2018 BuzzFeed News review of state criminal laws. In most of the states that do not explicitly outlaw sex between on-duty cops and detainees, an officer can claim consent and face only a misdemeanor “official misconduct” charge, which carries a maximum one-year sentence.

Before Chambers’ case brought renewed scrutiny on New York’s rape statute, law enforcement loopholes existed without controversy in most states, partly because few people realized they existed and partly because it has been politically unpopular to push laws that target cops and anger their powerful unions. But even by then, some states had closed their loophole: Oregon did so in 2005, Alaska in 2013, and Arizona in 2015.

The Closing the Law Enforcement Consent Loophole Act applies to the 100,000 or so law enforcement officers across all federal agencies, but not to state and local authorities. The loophole remains in place in a majority of states.

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