For far too long, a federal loophole has enabled police officers to sexually abuse people in their custody and defend themselves from charges by simply claiming the encounter was consensual.
Now, Congress has stepped in to change that by passing the Closing the Law Enforcement Consent Loophole Act, a feature of the recent appropriations bill. The law will also require states that receive certain federal grants to report the number of complaints alleging such encounters to the Department of Justice.
Despite laws in all states that prohibit prison and jail guards from engaging in sexual activities with people who are incarcerated, BuzzFeed reported in 2018 that there are laws in 35 states that allow police officers to claim that a person in custody consented to sex with them. Between 2006 and 2016, the outlet found that at least 26 of 158 law enforcement officers who had been charged with sexual assault and unlawful sexual contact with people they had detained had invoked the “consent defense.” The result? They were acquitted or had their charges dropped.
On the most basic level, that such a defense could even exist undermines the power dynamics between an officer and someone they’ve arrested. Such a situation renders it impossible for someone to freely give consent. How we talk about the consent defense loophole, couching it in language that frames officer-perpetrated sexual abuse as “sex” between a cop and someone in their custody, dangerously obscures the reality that sexual violence is about power and exploitation rather than sex. In the numerous cases of individuals who have been arrested and alleged that an officer sexually assaulted them, the word of the officer is often taken over theirs.
In 2018, an 18-year-old woman in New York said two officers raped her in their police van. The detectives claimed she consented, and prosecutors dropped the sexual assault charges. The men were sentenced to five years of probation after pleading guilty to separate charges.
Officer-perpetrated sexual violence isn’t rare. Sexual assault is the second most common form of police brutality, and research has even suggested at least 40% of police officers may be domestic abusers. In recent years, police officers in Arizona, Georgia, Maryland, Kansas, and other states have been placed on leave or fired for stalking local women. One particularly jarring case highlights how women of color are even more vulnerable: In 2015, Oklahoma police officer Daniel Holtzclaw was convicted for stalking and sexually assaulting more than a dozen Black women from 2013 to 2014.
While the Closing the Law Enforcement Consent Loophole Act takes an important and integral step in barring supposedly consensual sex between officers and those in their custody, its far-too-delayed arrival is reflective of much broader, systemic crises. In a legal system that routinely criminalizes and incarcerates sexual assault survivors, while frequently enabling abuse from law enforcement, even more sweeping changes remain necessary to protect incarcerated people and those in police custody.