Cops Having Sex With Detainees Should Always Be Considered Rape, Say New York Politicians

A member of the New York City Council is trying to change the law. Will it be enough?

New York City Councilman Mark Treyger speaks at a news conference on the steps of New York City Hall November 13, 2014 in New York. Treyger plans to sponsor legislation, which would apply the same rules to cyclists that already apply to automobile drivers. Tickets for texting or talking on the phone while biking will carry a $50 USD fine, which could rise to $200 USD for repeat violations. AFP PHOTO/Don Emmert        (Photo credit should read DON EMMERT/AFP/Getty Images)
New York City Councilman Mark Treyger speaks at a news conference on the steps of New York City Hall in 2014. Photo: Don Emmert/AFP/Getty Images

When New York City Council Member Mark Treyger read about Anna Chambers’s case, he was appalled. News of the alleged rape of an 18-year-old by two undercover detectives from the New York Police Department while she was detained in their car was disturbing enough. When the Brooklyn City Council member learned that officers Eddie Martins and Richard Hall had claimed that the sex was consensual, and that consent in police custody was even a possibility under New York law, he was moved to action. Both officers were indicted on first-degree rape charges on Monday, but for Treyger and others, the very idea that a consent claim was legally possible remains a problem.

The alleged rape of Chambers (the teen’s online pseudonym) has shed light on a flaw in the New York penal code. As I reported for The Intercept, sex between an arresting officer and a detainee in custody is not necessarily rape under law. The law recognizes that no consensual sex can take place between prison guards and their inmates, or parole officers and parolees, but fail to cover police with detainees yet to be placed in cells.

That’s the legislative gap Treyger, along with colleagues on both the city council and in the New York state house, are working to fill. He is drafting legislation that would make sexual consent for arresting officers a legal impossibility.

“People are shocked that this is not already a law.”

“People are shocked that this is not already a law,” said Treyger, who told me that there was a “coalition” of his colleagues both in city council and lawmakers at the state level who, struck by the Chambers case, are eager to see a swift change in legislation. New York City Council cannot change rape laws alone; Treyger’s bill could at most introduce police rape in this context as a misdemeanor. It would take a state-level intervention to make sex in police custody an automatic felony rape.

A legislative shift is no doubt important to preclude even an attempt at a consent defense in future cases like Chambers’s. But cops who rape do not necessarily do so thinking they can later claim consent in court. Could this be two cops scrambling to make a consent claim to avoid the consequences of their behavior? As Acting Brooklyn District Attorney Eric Gonzalez said at the officers’ arraignment on Monday, “To think that these are grown men in a position of power, who are blaming this on an 18-year-old girl, speaks in my opinion to desperation.”

The D.A.’s comment, while a recognition of the problem of coercive police power at play here, expressed a view that the officers were clutching at straws in the face of evidence. A hospital rape kit found Hall’s and Martins’s DNA on Chambers and, according to the teen’s attorney Michael David, two witnesses saw her handcuffed and put into the police car. If claiming consensual sex is a move, as the D.A. suggested, of desperation, then the officers must have been relying more on Chambers’s silence than on a legal loophole around rape in custody. And the power imbalances and historic impunity that produce a presumption of victim silence are as much the problem as the need for a legislative fix.

Rape statutes do not need to change to include what allegedly happened to Chambers as rape. The District Attorney’s Office delivered a 50-count indictment on Monday against the officers. Hall and Martins were charged with rape in the first degree, numerous counts of sexual assault, kidnapping, coercion, and receiving a bribe — the latter charge in reference to the alleged quid pro quo of granting Chambers her freedom in exchange for sex acts. Both have pled not guilty. As Chambers’s attorney told me, “A new law would have no application to this case. This was a brutal rape, there can be no suggestion of consent.” He stressed, again, that his client was handcuffed and coerced. David noted, though, that a shift in the law “could help a different case in future,” in which police claims of consent might seem more credible than in this case.

For Treyger, however, the issue is not whether this case is winnable under existing rape law. Treyger’s point is that the D.A. is now tasked with proving a rape case, which should be open and shut by virtue of proof of sexual activity alone. “Proving a rape is not easy,” Treyger pointed out, especially against two police officers whose defense attorneys are apparently bent on discrediting and smearing their accuser.

Part of the impetus to change legislation would be to save victims from the re-traumatizing process of having to prove in court that sex with an arresting officer was not consensual. “I’ve been outraged to hear what has come out from the defense attorneys of these detectives,” Treyger told me. He noted that the defense has pointed to Chambers’s social media presence — which, like many teens, is at times sexual and irreverent — as evidence that she is not behaving like a victim. “It’s a smear campaign against her [Chambers], and they’re going to continue to try to smear her while the D.A. has to prove a rape case that shouldn’t need proving.”

Comments from the officers’ attorneys reported from court on Monday attest to Treyger’s concerns. Mark Bederow, who is representing Martins, accused the D.A. of “hedging” in its 50-count indictment. Bederow claimed that it was inconsistent for the D.A. to charge the officers with first-degree rape, as well as on a count of receiving a bribe. “On the one hand, this was horrible rape,” Bederow said, summarizing the indictment. “On the other hard, if you don’t believe that, they made an agreement where if she performed sexual acts, they would let her go.” Bederow told the court, “Pick one, you can’t have both.” It’s the sort of statement that would be unutterable in court if the law recognized that police leveraging the freedom of a teen arrestee in exchange for sex is the very meaning of “horrible rape.”

“Our laws regarding sexual consent and the police must be brought into line with basic common sense and human decency,” Treyger said. But, even on a state level, the most a legislative effort like this could do is bring consent laws for police in line with those for corrections officers. And to look at prison rape statistics is to understand that the problem here goes way beyond the letter of the law. A 2014 Justice Department study found that of the 8,000 reports of abuse logged yearly by correctional administrators, nearly half involved corrections officers (and the statistics are just for reported incidents). The study noted that even in reported cases, “prosecution is extremely rare.”

The legal system needs to shift away from presuming the credibility of police over that of their accusers.

Only a subset of police rape cases would be helped by this legislative shift. Without DNA or other strong evidence as in the Chambers case, cops could well deny that any sexual contact happened, and a law that deems all sexual contact to be rape would be of little help to a victim seeking justice. The lesson of the Chambers case cannot simply be that the law needs to change, but rather that the legal system needs to shift away from presuming the credibility of police over that of their accusers.

If they were counting on Chambers’s silence, Hall and Martins miscalculated. The problem is that, for cops, more often than not, they would have made a good bet. If their current defensive strategy of discrediting Chambers in court proves successful, it will be far more damaging to the possibility of future victims coming forward and challenging police impunity than any continued flaw in the penal code.

Top photo: New York City Councilman Mark Treyger speaks at a news conference on the steps of New York City Hall in 2014.

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