There's No Such Thing as 'Consensual Sex' When a Person Is in Police Custody

On the night of Sept. 15, 2017, Edward Martins and Richard Hall, narcotics detectives with the New York Police Department, pulled over an 18-year-old woman and her two male friends for being in a park after dark. After finding marijuana in the car’s cup holder, they handcuffed the woman and told her friends to leave. The woman says that the detectives then put her in their unmarked police van with tinted windows and raped her as she cried and repeatedly told them “no.” Semen collected in a forensic evidence kit matched the DNA of both men.

In November, Martins and Hall resigned from the NYPD and currently face rape and kidnapping charges. Both pleaded not guilty. Their defense against these allegations is almost as disturbing as the crimes they are accused of. They claim that they had consensual sex with the woman while she was in their custody.

And here’s the thing: This defense might actually work because New York state law allows it.

New York is one of 35 states where consent may be used as a defense when a police officer is charged with raping a person in his custody. A Buzzfeed analysis of a Buffalo News database found that 26 out of at least 158 law enforcement officers charged since 2006 with sexual assault, sexual battery, or unlawful sexual contact with a person in custody have been acquitted or had charges dropped against them based on this absurd defense.

The defense completely ignores the incredible power police officers have over civilians in general, particularly those in their custody. That power dynamic makes consent impossible in this circumstance. Anyone in police custody implicitly understands this and knows that not going along with a police officer’s wishes could have serious adverse consequences.

This kind of sexual abuse by police is not uncommon. A Buffalo News analysis found that an officer is accused of sexual misconduct every five days. Another study discovered that 40 percent of young women in New York City reported being sexually harassed by police.

In 2015, then-Attorney General Loretta Lynch attempted to address the problem as part of the Department of Justice’s national guidance on gender bias in law enforcement response to domestic violence and sexual assault. One of the principles outlined in the guidance is to “hold officers who commit sexual assault or domestic violence accountable.” It seems highly unlikely this problem will be tackled by our current attorney general, Jeff Sessions, who has said he thinks systemic problems in police departments basically don’t exist.

While the trial of the two NYPD detectives proceeds, state and local officials have begun to take action. Gov. Andrew Cuomo last week announced a budget amendment that would remove the availability of the consent defense and prohibit sexual contact between police officers and those in custody. A similar bill recently passed in the Assembly and awaits action in the state Senate. Current state law prohibits corrections officers and probation officers from claiming consent when charged with sexual abuse of incarcerated people. These legislative measures would bring those in police custody under the law’s sensible protections as well.

The NYPD Civilian Complaint Review Board also voted last week to start investigating cases of sexual harassment and assault by officers. Previously, these cases were referred by the board to the department’s Internal Affairs Bureau. This change, which should have been made long ago, is welcome. Allegations of sexual misconduct by officers should be subject to thorough and independent investigations. When officers use their authority to threaten the safety of those less powerful, the public needs to have ways to hold them accountable. Without this accountability, women will continue to pay a heavy price.


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Marie St Pierre

"A Buzzfeed analysis of a Buffalo News database found that 26 out of at least 158 law enforcement officers charged since 2006 with sexual assault, sexual battery, or unlawful sexual contact with a person in custody have been acquitted or had charges dropped against them based on this absurd defense."
I think that was the most disturbing sentence in this article. The fact that there have been 158 officers charged is absolutely appalling. Seriously, WTAF?


Hang them high. Both of these officers have disgraced their profession and all that wear a uniform. They have violated the public trust and, once convicted by a jury of their peers, should be dealt with using the maximum punishment available.


it is a shame that a victim can be made a disgrace I strongly believe that law enforcer should be punished at the maximum conviction

WWIII The Drug War

weed possession = police gang rape.... WTF its time to end the drug war #WWIII

The Rev. Dr. Re...

Where there is a power differential, there can never be consent. Arrested citizen vs. Police is clearly a power differential. To claim consent is ridiculous.


I pray that justice will be served that the change the fact that the have a criminal denfese to rape you cant let them get away with my soul these are men that have been culture raised by the injustice federal government to rape rape cannot be forgiven but as police officers and lawenforcers of our supreme law they want it to be


Guessing the police body-cameras got turned off!


well I think they should be surgery inplated with carmas in their eyes revealing google their eyes for sexual assault and for safety of criminal misconduct but the carmrs they supposed to have in place now seem to not matter and they never will anytime they can eye witness with cell recording the crime and assault and their still acquitted they whole legal system in wriged to be injustice where the law only works for them I'm soul the raped me all my life the even abducted my baby and made me get naked everyday for 45 years and and made it where they handicapped my sight to blindess to see with my eyes and my hearing and wanted to beat me and treat me bad and as federal lawenforced they surgery but my body on a cell phone and gave them out to their entire administration elerticl shock with volt to my head and body also reveal my hygiene congress supreme court military fbi homeland security all serct service and federal supreme justice


Soul is telling the truth.

Dr. Timothy Leary

A.C.L.U., the guardian of free speech, has censored my comments again.


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