In 35 States, Cops Have a Legal Loophole to Sexually Assault Someone in Custody

It should go without saying that a person in police custody is not in a position to consent to sex — but apparently, it needs to be reiterated.

A Care2 petition is drawing attention to the fact that 35 states do not have laws on the books prohibiting police officers from engaging in sexual activity with people in custody. If this issue sounds like a massive legal loophole — and a nightmare waiting to happen — you’re not alone in your thinking.

A recent report at Buzzfeed highlighted the issue for many members of the public who weren’t aware of this reality. When a teenager named Anna was brought into custody and raped repeatedly, she bravely reported the crime, and the officers involved were identified.

To her horror and fury, though, the officers argued that it had been a consensual encounter — and an act that did not, in fact, go against the law. Having sex on shift is viewed as a “misconduct” issue, not a fundamental violation.

In the #MeToo era, we’re having many long-overdue and difficult conversations about sexual autonomy and consent. Our view of what consent looks like has also evolved radically in recent years — many people are looking to a model of affirmative or enthusiastic consent, for example. Some argue that in situations of extreme power imbalances, like teacher/student, boss/employee or doctor/patient, it isn’t possible for people to have truly consensual sex, because the stakes for refusing can be very high for the person in a subordinate position.

That’s certainly true of interactions with law enforcement. A pattern of systemic refusal to hold police officers accountable for crimes is a national issue. And a person under arrest may feel powerless to refuse police officers, both physically and emotionally. For example, a detainee might be threatened with more charges, or told she can leave if she cooperates. When a person with a gun and a badge issues orders to someone in a vulnerable position, refusal could even come with fatal costs.

The fact that so many states haven’t closed such an obvious loophole in the law is troubling — but, like Anna, many people assume that it can’t possibly be legal for police officers to have sex with detainees, or while on duty, because it seems like such an obvious civil rights violation. Many may not be aware that their states have no actual laws in place to protect them, and passing laws that put checks on police power can be challenging with police unions ready to step up in defense of the law enforcement community.

There’s good news, though: Now you know this is an issue. You can check out Buzzfeed’s map to see if your state is one of those that protects the rights of arrestees. If it’s not, you can contact your elected officials to ask that they take action on this issue; bad behavior often goes unchecked because people think nobody’s paying attention, and putting pressure on the people you voted for can lead to meaningful policy changes.