SEX, CONSENT AND CUSTODY

Earlier this month, BuzzFeed published an explosive article about a New York City teenager accusing two police officers of raping her while she was in custody.

The entire story is harrowing. But one aspect seems especially pertinent — as it turns out, there are legal loopholes in 35 states that potentially make it so that law enforcement officers can have sex with somebody who is in custody and then claim it was consensual.

Excuse me, what?

This apparent oversight is actually quite complicated. In Massachusetts, there is no law clearly stating that an officer on duty is forbidden from engaging in sexual intercourse with a person, perp or otherwise. One exception is corrections officers, who are specifically barred from having sex on the clock and in uniform. Which leaves one to wonder what, if anything, is in place to prevent an arresting officer from abusing their powerful position.

In another line of work, professors have been fired over starting consensual and lawful sexual relationships with students. It is considered highly unprofessional if one party lacks the power to say no, and in many cases there is some accountability at institutions where such things transpire. When it comes to police, though, in 35 states, including this one, the management (aka our government) has much less stringent guidelines.

Is this ambiguity an actual problem? It depends who you ask. Said lack of a law might have some bearing on the upcoming trial of Salem police Officer Brian Butler, who is claiming that he had consent to have sex with a naked drunken man in his custody back in 2016, in a closet no less. That case goes to trial in June.

Peter Manning, who teaches at the School of Criminology and Criminal Justice at Northeastern University, said the loophole in the Massachusetts law “is striking.” “The courts tend to be very generous to police officers in the line of duty,” Manning said. “They realize how difficult the job is, how officers are subject to complaints and retaliation, so they tend to be lenient around issues around this unless it is repeated. Speaking generally, because I wasn’t aware of this, the traditions of different police departments on how they enforce regulations vary widely in regards to how far they go into investigations. Big cities have larger internal affairs and more resources to look into it.”

Philip Stinson, associate professor of the criminal justice program at Bowling Green State University, has written about sexual police misconduct. A former police officer in Dover, New Hampshire, he closely follows all reported incidents in which cops are arrested for sex crimes at work, and he says that while it isn’t normal, it is fairly common for cops to have sex while on duty. His research shows that the most vulnerable parties are often targeted: “people who are on the fringes, groups dealing with a predator type of officer, young teenage girls, sex workers, exotic dancers, prostitutes.”

Stinson continued: “Different categories of people who are really at risk of being sexually abused … [in] some situations may feel like they weren’t able to do anything but submit.” In certain other cases, the Bowling Green professor said that there are police “groupies” who intentionally try to sleep with officers in uniform.

According to Stinson, some media outlets have misunderstood the loopholes in question. “Rape is rape,” he said. Indeed, there are laws in every state that clearly define rape as a criminal offense. He adds: “There is a difference between consensual and non-consensual sex.”

Regardless of the statute, when consent is used as a defense strategy, credibility comes into question.

“In court, police are deemed to be truth tellers,” said Manning, the Northeastern criminology professor. “So if a case does go to court, a reliable witness, typically the citizens, are discredited in court. Either through bias, lack of education, and race; police officers are considered the truth teller.”

Manning also acknowledged the blue wall of silence: “I personally doubt that there is any toleration [for such acts] — it might be something that is overlooked. When people talk about the thin blue line, what they mean is someone might overlook this behavior, not want to know or talk about it. Though they may know some are engaged in this kind of activity, there is a failure to recognize it.”

As for why this issue barely registers with lawmakers, or with the public: “These are not topics that are discussed in polite company,” Stinson said. “To a large extent, the ones that make the newspapers only make local and regional news. Other people in other areas are reading similar cases — a lot of this stuff flies under the radar. It’s rare when it gets traction on a national level.”

Locally, Manning said there could be support for a measure to close the so-called loophole in Mass. “A law would clarify issues,” he said. “Generally, I think top command would be favorable to this, but wouldn’t speak out about it because they wouldn’t want to alienate troops. … I presume a substantial number of women would be supportive, but the public in general tends to tolerate a great deal from officers. They view them as having a certain kind of status, a sacred status allows freedom and latitude. … It would be helpful for people who are powerless or don’t have the resources to sue. … Laws don’t solve everything, but they would make a symbolic statement about the importance of this.”

Following the aforementioned BuzzFeed piece, some people around the Commonwealth grew concerned enough to call their state reps. Caroline Medina, chief of staff for Newton state Rep. Kay Khan, said Kahn, as well as Somerville state Sen. Pat Jehlen, were contacted by worried constituents.

“Representative Khan is in the process of drafting a piece of legislation that addresses the existing loophole by prohibiting officers from engaging in sexual conduct with those in their custody, supervision, or with whom they interact in the course of their professional duties — these details are still in the process of being defined,” Medina said. “Hopefully such legislation, in addition to our existing sexual assault statutes, will eliminate ambiguity and help victims of such abuse feel more empowered to come forward.”

Some state lawmakers, not unlike the general public, were unfamiliar with this loophole until they were contacted for this story. State Sen. Sonia Chang-Diaz said, “This is the first time the issue has been brought to my attention, so I need to learn more about the specifics. However, if it’s true that Massachusetts statutes and regulations are silent on this issue, that’s a definite gap, and I’m glad it’s coming to light.”

This article was produced in collaboration with the Boston Institute for Nonprofit Journalism and published in DigBoston.