Ababiy: Ending the police sexual misconduct loophole

Our state’s laws should protect the most vulnerable.

Jonathan Ababiy

“It’s painful. I didn’t know what to expect. I still really don’t,” is how Anna Chambers described her ongoing rape trial. Last year, two New York cops sexually assaulted her after taking her into custody for a drug charge. The legal process has dragged on painfully for Chambers, who was 18 at the time of the crime. The defense lawyers of the officers have subjected her to rounds of questioning, digging up her old social media posts to try to prove that she had not undergone the trauma of a sexual assault. 

The two cops accused of sexually assaulting her don’t even deny a sexual encounter happened, instead they are simply arguing that the encounter was consensual. Under New York law, consensual sex between cops and detainees isn’t explicitly outlawed and only carries a misconduct charge with a maximum one-year sentence. Their legal reasoning has worked in other states with similar laws; Buzzfeed News’ Albert Samaha reports that officers in Arizona and California have been acquitted from sexual assault charges by arguing that the sex was consensual or the women “seduced” them. 

Shockingly, Minnesota’s laws aren’t any different. Under the Minnesota Criminal Code, it is unlawful for what it calls “positions of authority,” like your parole officer, jail guard and even therapist, to engage in sexual acts with you. But, according to University Student Legal Services lawyer Karmen McQuitty, police officers are conspicuously absent from the law’s list of “positions of authority.” A medical attendant can be charged with criminal sexual conduct in a position of authority, but a police officer can’t. Defense lawyers do have to prove consent to beat rape charges — the Arizona and California cases prove this is not especially difficult — but there is, effectively, a legal loophole, or large opening for police officers who engage in inappropriate behavior. 

The loophole is particularly outrageous because the Minnesota statutes about parole officers, jail guards and therapists all make sense. They state that “consent by the complainant is not a defense.” The state has recognized that proper consent can’t be given when one of the actors is in a much higher position of power. Parolees, prisoners and patients are all vulnerable and can be taken advantage of. They may give permission, but the consent they give is not proper consent, so the sex that results breaks the law. People in “positions of power” should altogether avoid sexual contact.

In the same vein, it is ludicrous to consider that there is any semblance of validity in the consent between a police officer and civilian. Interactions with police officers are often emotionally strenuous for people, even if someone hasn’t committed a crime. You’re scared that something you do or say can be misconstrued for something illegal. Police officers’ legal ability to restrain you further complicates any notion of consent. In the case of Chambers, she was taken to a police van and handcuffed. Additionally, as the Arizona and California cases have shown, people will initiate sex to avoid tickets or jail time. 

Weak misconduct charges and policy manuals don’t reflect the scope or injustice of police sexual misconduct. A law that explicitly outlaws sex between police officers and detainees is needed in Minnesota. Of course, most cops won’t engage in this kind of inappropriate behavior. A new law, though, like the one that pertains to parole officers or therapists, would catch the rotten apples that otherwise slip through.

Other states, like Oregon and Alaska, have closed the loophole in their state’s laws. It’s time Minnesota does, too.