It's Not Illegal for NYPD to Have Sex with Someone in Custody

On Monday, according to the New York Post, the Brooklyn teen appeared for the second time in front of a grand jury weighing the possibility of criminal charges. Chambers alleges that narcotics officers Eddie Martins and Richard Hall detained her and friends during a traffic stop in September; when they found prescription drugs, the officers allowed the two men she was with to leave, but handcuffed her and drove her away in their unmarked police van. She claims they parked in a Chipotle parking lot, and Martins and Hall forced her to perform oral sex on them. One of the cops, she alleges, raped her.

The Post reports that the alleged perpetrators' DNA matched the samples found in Chambers' rape kit. The officers, who have since been put on limited duty, claim the sex was consensual. They've also reportedly attacked her credibility as a victim.

According to a recent report from The Intercept, Chambers' case reveals a gaping hole in New York state law: While sex is prohibited between corrections officers and the prisoners they're charged with guarding, there is no law prohibiting such conduct for police. That's why New York City Councilman Mark Treyger announced yesterday he plans to file legislation to make it "illegal for an NYPD officer to engage in sexual conduct with someone in the course of law enforcement activity."

In a statement, Treyger said he was particularly impacted by Chambers' case. "Regardless of legal outcomes," he wrote, "we know that it is wrong for two police officers to use their positions of authority to engage in sexual activity with a teenager. Everyone deserves to be treated with professionalism in the course of their interactions with the police; the abuse of power exercised by these two detectives rattles the foundations of positive police-community relations that the law enforcement community has been working to build."

Josie Torielli is the assistant director of intervention programs at the NYC Alliance Against Sexual Assault. She tells Broadly she applauds Treyger's recognition of how important an issue police sexual violence is. "I'm just sorry it took a case where there was an [alleged] egregious misuse of power to make that happen."

But the fact that there needs to be a law on the books expressly prohibiting police officers from engaging in sexual activity with someone in their custody says a lot about the way people in positions of power treat girls and women, she says. "It calls to mind a lot of issues around consent and around power dynamics and about how those things can be really abused. Even the notion that there could be consent in a situation where someone is handcuffed … is laughable."

Andrea J. Ritchie, a New York-based police misconduct attorney and researcher and author of Invisible No More: Police Violence Against Black Women and Women of Color, tells Broadly that any action on this issue is a step in the right direction, but "we need to do much more to keep this from happening in the first place."

"A lot of attention has come to [Chambers'] case because she's a teen, and that's abhorrent and unfortunately, consistent with national patterns," Ritchie explains. "Research across the country shows that police officers prey on teens as a systemic practice in police sexual harassment and misconduct. [But] it's also a problem for adults … in the context of drug arrests, traffic stops, policing of prostitution. We have to look at what about the war on drugs, what about traffic stops, what about policing of prostitution is making women who come into contact with police officers in those situations vulnerable and how do we fix that. That's where the real issue lies."

But Ritchie adds that passing this legislation would be helpful because there's currently no policy in NYPD that prohibits police officers from engaging in any kind of sexual activity or sexual harassment while on duty. According to the findings of a 2015 AP investigation, one of the most prevalent, and underreported, complaints against law enforcement is sexual misconduct. (Former Oklahoma cop Daniel Holtzclaw, for example, was sentenced last year to 263 years in prison for raping and assaulting several women while on duty.)

"New York City is definitely behind the curve," she says, "as the biggest police department in the country, in not having an explicit policy and program to prevent, detect, and ensure accountability for this kind of violence."

For survivors, though, Torelli says Treyger's intention to update New York law could be impactful. "Legislation can help us to raise awareness. For a lot of survivors, one of the reasons they go through a criminal legal process is to have something named as a crime, and to have something named as illegal. It's important to do that. Leaving aside the limited remedies that the criminal legal system sometimes offers, there is sometimes a great deal of comfort in having something named as illegal, even if it shouldn't have to be so."