photo by Hugo Cadavez
In the aftermath of the #MeToo movement, some commentators have worried that the concept of consent in a sexual encounter is sometimes muddy or unclear.
So here’s an easy one: If someone is in law enforcement custody, there is no way that person can meaningfully consent to sexual acts with the person or people detaining them.
Yet in many states – including, until recently, New York – this truth was not reflected in the law, leading to situations like that of a young woman in New York City whose case has made national headlines.
The young woman in question, who goes by her online alias Anna Chambers, filed a civil lawsuit against detectives Richard Hall and Eddie Martins, as well as against the city. In addition, last fall Hall and Martins were arraigned on a total of 50 charges, including first-degree rape and first-degree criminal sexual assault. Both men pleaded not guilty to all counts, and have been released on bail. They have also resigned from the New York Police Department.
Chambers, who was 18 years old at the time, said that she was driving through a Brooklyn park with two male passengers when the detectives stopped her. According to Chambers’ attorney, Michael David, the detectives forced her to partially strip in order to prove she wasn’t hiding anything, and then arrested her on charges of marijuana possession. Chambers said both detectives subsequently raped her in the back of the vehicle, while she was handcuffed.
The men do not dispute that a sexual encounter took place; DNA evidence supports Chambers’ claim as well. But they maintain that the interaction was somehow consensual.
In March, New York state lawmakers unanimously passed a bill barring police officers from having sex with anyone held in custody. This is good news, though it is unsettling that prior to the new law, cops could argue sex with a detained individual was consensual and face merely a misdemeanor charge for misconduct. In New York, it was already illegal for corrections officers to engage in sex with prisoners. That is because in real life, as opposed to sexual fantasy, there is no such thing as consent in such a situation. If someone is in custody of an arresting officer who can decide whether and how that person is going to be charged, the power dynamic makes it impossible.
A few states, including Maryland and Texas, bar police officers from having sex with detainees but do not categorize such encounters as rape by default. Several others require prosecutors to prove that an overt abuse of authority occurred. And, as BuzzFeed reported, as of April 35 states still allow police to claim that sexual encounters with detainees were consensual.
Even though New York has updated its law, there are still a lot of unanswered questions in Chambers’ case. For instance, David reported in November that nine cops arrived at the hospital where Chambers sought treatment after her sexual assault. The officers reportedly tried to intimidate Chambers and her mother out of reporting the incident. The cop who took the lead reportedly took pains to keep his name tag out of sight while aggressively insisting that Chambers had her story wrong.
As far as I can find, none of the officers who pressured Chambers at the hospital have been fired, prosecuted for witness tampering or obstruction of justice, or even publicly identified at all. (David said he wanted to add at least the most aggressive officer to Chambers’ civil suit, but it is unclear from media coverage whether he did so.) Can’t the ace detectives at NYPD identify their own co-workers from hospital surveillance and other sources?
In April, the judge trying Martins and Hall’s case ordered prosecutors to turn over notes on Hall’s relationship with Assistant District Attorney Nicole Manini. In a formal letter, prosecutors insisted the alleged affair had nothing to do with the investigation into Hall’s conduct. However, the District Attorney’s office disclosed the details “out of an abundance of caution.” David, the young woman’s attorney, rightly characterized this new development as “very troubling.” At best it muddies the legal waters; at worst it creates a red herring to distract from what they officers involved actually did to a young person under their control.
Does a special prosecutor need to be named to protect New York City women from cops who think it is okay to have sexual contact with a teenager in custody? Has there been any sort of housekeeping at Brooklyn South, where professional discipline has seemingly broken down?
The ex-detectives are expected to go to trial this fall. The civil lawsuit has been transferred to federal court.
Whatever happens next, we can safely assume that the city will eventually compensate Chambers financially. But I do not believe she came forward for financial gain. Chambers and her mother have displayed considerable courage; even beyond the behavior that has been reported, New York City cops have been known to act vindictively. Chambers should take pride in the fact that, by stepping forward, she propelled important legislation and achieved a measure of justice through the officers’ resignations. We can hope that Chambers and those supporting her will inspire others to be similarly brave in the future.
And to the 35 states where officers can still claim consensual sex with a person in custody: #WakeUp.