An Omaha, Nebraska police officer pulls a woman over and tickets her for driving under the influence. He then drives her home. She follows him on Instagram. He immediately sends her a private message. A few days later the officer shows up at her apartment with alcohol. The next morning, the woman wakes up with no pants on. She believes she was drugged, and says that she wouldn’t have otherwise had sex with the officer. She immediately files a sexual assault complaint with the local Sheriff’s Department, but no criminal charges are filed. The district attorney says there isn’t enough evidence to prove the case beyond a reasonable doubt.
The recent Omaha case is one of countless incidents in which police officers target people they come into contact with in a variety of circumstances, including traffic stops, drug and prostitution arrests, calls for assistance, and community engagement programs. According to a review of hundreds of incidents conducted by the Buffalo News, on average, an officer is caught in an act of sexual misconduct every five days — and those are just the ones who are caught.
The problem is systemic, according to Phil Stinson, a former police officer who has conducted extensive research on the issue.
“Police commonly encounter citizens who are vulnerable, usually because they are victims, criminal suspects, or perceived as ‘suspicious’ and subject to the power and coercive authority granted to police,” Stinson wrote in one study of hundreds of officers arrested for acts of sexual “misconduct” nationwide.
“Police-citizen interactions often occur in the late-night hours that provide low public visibility and ample opportunities to those officers who are able and willing to take advantage of citizens to … perpetrate sex crimes.”
“Officers who may commit these crimes, like other offenders, are skilled at picking out people who are not likely to be believed, or who are less likely to report or to pursue a complaint – women involved in prostitution, women who are homeless, women for whom English is a second language,” Sarah Layden, director of programs and public policy at Rape Victim Advocates, a Chicago-based agency that works with survivors of sexual assault, told ThinkProgress.
The problem is so widespread, in fact, that the International Association of Chiefs of Police, the Obama administration’s Task Force on 21st Century Policing, the U.S. Department of Justice, and the New York City Commission to Combat Police Corruption have all called on police departments to address it. Several states are aiming to do just that.
“Not too much is done in those cases”
Although some media coverage has suggested otherwise, sexual assault and rape — by anyone, including law enforcement officers — is squarely against the law in all 50 states, regardless of whether an individual is in custody, or whether police officers can assert a defense of consent.
Following several high profile cases and investigations, states like New York, Maryland, Louisiana, Illinois, Delaware, Alabama, and Wisconsin are taking additional steps to tackle the problem. New York Gov. Andrew Cuomo (D) recently signed a law, originally passed as a budget amendment, that eliminates the option of raising a defense of consent when police officers are charged with sexual assault of an individual in “actual custody.” In Maryland, the House recently passed a bill that would go beyond eliminating the consent defense to categorically stating that a “law enforcement officer may not engage in sexual contact, vaginal intercourse, or a sexual act with a person in the custody of the law enforcement officer.”
In Illinois, a bill would go one step further by providing that any officer convicted of custodial sexual misconduct would immediately lose their job. Last year, Illinois passed a law mandating that investigation of complaints of criminal sexual assaults by law enforcement agents be conducted by employees of a different agency. However, following lobbying efforts by police unions, the external investigation requirement doesn’t apply to the state’s largest agencies, including the Chicago Police Department.
Still, none of these bills would have changed the outcome in the Omaha case, because no criminal charges were brought against the officer –- as is true in the vast majority of cases of police sexual harassment, assault, or violence.
“Not too much is done in those cases. You first have to have a person willing to come forward, then a law enforcement entity willing to investigate, and last, a state’s attorney who is willing to prosecute,” Layden said.
Nor would the changes to the criminal code currently under consideration by legislatures across the country apply even if criminal charges had been filed, because the woman was not under arrest — or “in custody” — at the time of the encounter in her apartment, even though the charges against her were still pending.
Illinois’ proposal to fire officers convicted of sexual misconduct also wouldn’t apply because there was no criminal conviction against the officer.
And, the fact that the Omaha woman’s complaint was investigated by another law enforcement agency also did not make a difference in her case. The sheriff pointed to the absence of witnesses and corroborating evidence beyond the survivor’s testimony. This is often the case in instances of police sexual violence, no matter who investigates.
The reality is that current and proposed legislation banning what is euphemistically called “custodial sexual misconduct” falls dangerously short of addressing the problem.
Abusing the power of the badge
Bills limited to individuals “in custody” do not reach a number of contexts in which police sexual harassment and abuse is commonplace.
For instance, research has found that police officers frequently target victims or witnesses in sexual assault or domestic violence investigations, young people they encounter as they patrol school hallways or through youth engagement (“Explorer”) programs, and people seeking assistance who are not in police custody, but are still subject to officers wielding the power of the badge.
Even when off duty, officers have been known to use service weapons, patrol cars, the threat of a ticket, arrest, or force, to play on survivors’ need for protection and investigation of crimes they have reported. None of the aforementioned legislation would, for instance, have addressed the circumstances under which M.B., a rape survivor, felt coerced into sex with the investigating officer, after fearing, among other things, that he would drop the investigation of the sexual assault she reported to him.
Officers use service weapons, patrol cars, the threat of a ticket, arrest, or force, to play on survivors’ need for protection.
These realities point to the need for comprehensive and proactive responses to a persistent and pervasive problem. My research on this issue over the past two decades suggests that, at a minimum, state and local legislation should explicitly bar all sexual conduct by officers agents acting “under color of law” – a legal term referring to use of authority conferred on law enforcement officers, regardless of whether individuals are formally “in custody.”
Cynthia Conti-Cook, staff attorney at the Legal Aid Society of New York’s special litigation unit, which brings suits against officers involved in misconduct, agrees, saying “bans on sexual contact should include all interactions with officers occurring when they act under color of law, which is already a legal standard used to discern when officers’ conduct, whether on or off duty, should be subject to constitutional constraints. This is important because otherwise officers could still take advantage of the power they exercise over people during non-custodial interactions like street encounters and questioning.”
Advocates in New York are hopeful that legislators will go beyond eliminating the consent defense where individuals are in “actual custody.” According to Erika Lorshbough, legislative counsel at the New York Civil Liberties Union, New York State legislators could still conceivably introduce legislation that expands upon the measure that passed in March.
Additionally, ensuring that bans on sexual conduct by on-duty police officers are in fact implemented would require mandating that law enforcement agencies within each jurisdiction adopt and effectively enforce policies consistent with the law, and create mechanisms to prevent and detect sexual harassment, extortion, and assault of members of the public.
For instance, the Omaha Police Department does not have a policy that explicitly bans sexual harassment and sexual contact with victims, witnesses, suspects, or others they may come into contact with in the course of their duties.
Omaha Police Chief Todd Schmaderer originally justified the absence of a specific policy, saying in a statement released when the story first broke that “it’s simply too difficult to cover every set of facts with individual rules.” He later relented, saying, “If a policy needs to be put into place to address that and not in broad strokes, then we’ll go ahead and do that.”
The same is true of the majority of the largest departments across the country – including the New York Police Department, which employed the officers accused of raping a teenager while she was handcuffed in a back of a police vehicle, prompting the introduction of the recently passed New York State legislation.
The New York City Commission to Combat Police Corruption roundly critiqued the department last year for its failure to enact specific policies, stating “The Commission continues to recommend that the Department set forth a list of explicit rules to put members of the service on notice that this behavior [sexual violence] is not acceptable. A strict prohibition against engaging in social and intimate conduct with victims, defendants, or witnesses … at least during the pendency of the investigation and criminal prosecution, would protect these victims, witnesses, and defendants from feeling powerless to refuse this contact….”
The NYPD has yet to follow the Commission’s recommendation, in spite of the passage of the state bill.
Ultimately, legislative approaches focused on criminal prosecutions and consent defenses are limited in their impact.
“We need to think about what delivers justice to survivors, what puts survivors’ needs as a central question, what will put an end to that behavior,” Piper Kerman, author of Orange is The New Black, said at a panel at a recent Atlantic Live event. “The prospect of a woman obtaining justice from the system that incarcerates her is negligible,” she added.
Additionally, “these laws don’t make women safe from sexual violence by police officers,” Layden said, because they do nothing to prevent police sexual assault. Rather, advocates and survivors call for increased awareness, identifying common circumstances and targets of police sexual violence, limiting officers’ power, discretion, and access to potential victims, and shifting police culture as effective prevention tools.
“The prospect of a woman obtaining justice from the system that incarcerates her is negligible.”
Given the failure of many police departments to adequately investigate complaints of sexual violence by police officers, advocates are also calling for giving survivors of sexual violence by law enforcement officers the option of reporting to someone other than the police – whether it’s the department that employs the officer or another one. While New York City’s Civilian Complaint Review Board (CCRB) recently took important steps in this direction, it still lacks the resources, authority, and political will to take on serious complaints of police sexual violence. In Illinois, unions blocked legislative efforts to have complaints of police sexual violence independently investigated by a civilian oversight agency.
According to Kylynn Grier of Girls for Gender Equity, an organization that is part of the push to have the CCRB take over cases of sexual harassment assault by police, survivors need access to services, accountability, and compensation, regardless of whether the police officers who perpetrate sexual violence against them are prosecuted.
Layman said the Illinois bills are “a step in the right direction, but how comprehensive they are is another question.”
The Maryland state bill also represents “first step toward acknowledging the issue,” said Jacqueline Robarge of Baltimore’s Power Inside, a human rights and harm reduction organization that tracks over a hundred instances of police sexual assault and extortion. But she emphasized “this is by no means the end — this is not prevention.”
“This not only an issue of police accountability and transparency,” Robarge added. “We do need to increase access to information about investigations of complaints of sexual violence by police officers through reform of the Maryland Public Information Act. And we need to pierce the shroud of silence and lack of accountability for police misconduct fostered by the Law Enforcement Officers’ Bill of Rights.”
“But we also need to reduce the power police officers have to engage in sexual violence and extortion through decriminalization of drug, prostitution and minor offenses. We need tackle the police culture that allows sexual violence to take place with impunity. It’s all a piece of the puzzle.”