There is no sexual consent while under police custody

Mark Treyger
Oct 24, 2017 · 3 min read

Nearly a month ago, our community was outraged to hear of an incident that occurred between a teenage girl and two Brooklyn South Narcotics Detectives. As details continue to emerge about what happened the night of September 15th, I remain extremely disturbed by this case, and the troubling implications it has for police-community relations.

The Brooklyn DA’s office is actively investigating, and, reportedly, a grand jury has been convened to evaluate criminal charges against the two detectives involved. As the criminal investigation proceeds, however, we, as a community, need to have a conversation about the nature of sexual consent, and our expectations of both authority figures and victims of sexual assault.

New York State law wisely takes into account the impact that involvement with the criminal justice system has on the ability of individuals to give sexual consent: by law, those incarcerated are incapable of giving consent to corrections workers, and those under community supervision are incapable of giving consent to their parole officers. Necessarily, the power dynamics between a trusted agent of our criminal justice system and an individual under supervision mean that no sexual consent can be given entirely free from coercion.

Unfortunately, state law does not currently apply the same rigorous standard of consent to incidents of sexual contact between a police officer and someone under arrest, temporarily detained, or otherwise subject to law enforcement activity. I am pursuing legislative action on the City level to make it illegal for an NYPD officer to engage in sexual conduct with someone in the course of law enforcement activity. Likewise, I urge my colleagues in the New York State Legislature to work quickly to remedy this omission in the Penal Code. Our laws regarding sexual consent must be brought into line with basic common sense, empathy, and human decency.

We do not need a change in laws, however, to understand that what occurred was deeply, morally wrong. Regardless of legal outcomes, we know that it is wrong for two police officers to use their positions of authority to engage in sexual activity with a teenager. Everyone deserves to be treated with professionalism in the course of their interactions with the police; the abuse of power exercised by these two detectives rattles the foundations of positive police-community relations that the law enforcement community has been working to build. It does a great disservice to the good work of the overwhelming majority of police officers, by undermining public trust.

The response to this case, in some instances, has been reflective of an appalling lack of empathy for sexual assault survivors, and the diversity of their experiences and responses to trauma. The attempts by the attorneys for the detectives to discredit this teenage girl by invoking her behavior on social media are inexcusable; I am grateful to the Brooklyn District Attorney for repudiating these efforts to reinforce dehumanizing stereotypes about “appropriate” behavior of a victim of rape.

Victims of rape and sexual harassment already face significant barriers to reporting their assaults. As we have recently seen, this process may become more onerous when authority figures, from Hollywood producers to law enforcement, are the suspects. When police officers exploit the public trust to prey on individuals, it is particularly egregious. Elected officials in New York City and State, myself included, must do more to ensure that our laws protect survivors of sexual assault, and hold police officers to the same standards as corrections workers and parole officers when interacting with the public.

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