House lawmakers just passed a bipartisan bill that would make it illegal for federal law enforcement officers to engage in sexual acts with people in their custody regardless of alleged consent ― a disturbing practice that is allowed by law due to loopholes in protections for detained people.
The Closing the Law Enforcement Consent Loophole Act, created by Rep. Jackie Speier (D-Calif.), would make it a criminal offense for officers such as those in the Federal Bureau of Investigation and Immigration and Customs Enforcement to engage in any sexual activity with anyone in their custody or while exercising their authority as an officer.
The bill is included in the larger George Floyd Justice in Policing Act, which passed 220-212 in the Democratic-controlled House on Wednesday night.
“There is no consent when one person is exercising the power of law enforcement and the other is handcuffed or in custody. My bill would close a dangerous legal loophole that has allowed law enforcement officers to claim consent as a defense against accusations of sexual assault,” Speier said in a Thursday morning statement.
Speier introduced the consent loophole act after an 18-year-old woman accused two New York detectives of raping her in 2017 while she was in custody. Although the Prison Rape Elimination Act protects inmates from sexual abuse by prison staff, the law does not protect detainees who have not been convicted of a crime. Through that loophole, New York state law allowed the officers to claim the sex was consensual despite the fact that the 18-year-old woman was handcuffed in the back of their unmarked police car. The two detectives were later sentenced to five years of probation with no jail time.
The legislation also incentivizes states to have similar laws for local and state police in order to be eligible for Community Oriented Policing Services (COPS) funding. Additionally, the bill requires states to annually submit information on the number of sexual misconduct complaints against individual federal officers, and those reports will be sent to Congress for review.
On the state level, it’s still legal in 34 states for police to engage in sexual activity with someone in custody. Police officers who are accused of rape or sexual assault often claim consent as a defense but, in reality, the power imbalance is so large that there really can’t be any true consent.
“While it’s illegal in Ohio, federal law enforcement officers, as well as police officers in the majority of states, can claim a sexual encounter with someone in their custody was consensual,” co-sponsor Rep. David Joyce (R-Ohio) said in a Thursday statement. “As there is an inherent imbalance of power and authority between an officer and detainee, there is no situation in which consent could be distinguished from coercion.”
The George Floyd Justice in Policing Act also bans police from using chokeholds and no-knock warrants, requires data collection on police incidents and ends qualified immunity, which is a legal rule often used to shield police from accountability.
Speier initially introduced the Closing the Law Enforcement Consent Loophole Act in 2018 and the bill passed the House in 2019, but failed to get through the Republican-controlled Senate. Lawmakers are more hopeful the bill will be successful now with a Democratic majority in the Senate.