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NYPD Case Calls Attention to 'Consent Defense' That Can Be Used by Officers Accused of Rape in 35 States

"It should be clear across the state for officers from every department, that when someone is in custody they do not have the ability to consent to sexual activity."

A young woman's inability to bring charges against two officers who she says raped her while she was in their custody has called attention to a loophole that exists in 35 states. (Photo: danielvalle5/Flickr/cc)

A bill gaining traction in New York state would do away with a loophole that lawmakers and civil rights advocates say should never have existed there—or in 34 other states where police officers are legally allowed to sexually assault people they take into custody.

The law has gained attention in recent months following the case of an 18-year-old woman named Anna who was detained by two NYPD officers last September after they found her and two friends with marijuana. According to Buzzfeed News' account, the two officers handcuffed Anna, sent her two male friends away, and "led her—a slender woman just over 5 feet tall—into the back of the unmarked police van with tinted windows," where they allegedly raped her repeatedly.

DNA evidence connected the two officers to the attack. They have both resigned from the department since the incident.

But neither officer has been charged with a crime. While New York makes it illegal for corrections officers to have sexual contact with inmates, police officers can legally claim that detainees consented to sexual activity, protecting them from sexual assault charges.

New York Governor Andrew Cuomo, a Democrat, has called Anna's case evidence of an "egregious loophole."

"I was shocked," Democratic state Senator Diane Savino told the Guardian, of her discovery that the loophole existed. "It should be clear across the state for officers from every department, that when someone is in custody they do not have the ability to consent to sexual activity."

The lapse in protections for detainees is the norm in the majority of U.S. states; California, Oregon, Arizona, and New Jersey are some of the 15 that do have laws on the books barring officers from sexual contact with those they take into custody.

Across the country, at least 26 officers since 2006 have evaded punishment for sexually assaulting people in custody by invoking the "consent defense," according to Buzzfeed.

In New York, Cuomo has said he will include language in the state's upcoming budget that bars sexual contact between detainees and officers. The state Assembly has passed legislation to close the loophole, and a bill is pending in the state Senate.

An online petition urging reforms across the country gained more than 96,000 supporters this month. On social media, Anna's case has drawn attention, with journalists and others expressing shock that the "consent" loophole exists.

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