When New York City Council Member Mark Treyger read about Anna Chambers’s case, he was appalled. News of the alleged rape of an 18-year-old by two undercover detectives from the New York Police Department while she was detained in their car was disturbing enough. When the Brooklyn City Council member learned that officers Eddie Martins and Richard Hall had claimed that the sex was consensual, and that consent in police custody was even a possibility under New York law, he was moved to action. Both officers were indicted on first-degree rape charges on Monday, but for Treyger and others, the very idea that a consent claim was legally possible remains a problem.
The alleged rape of Chambers (the teen’s online pseudonym) has shed light on a flaw in the New York penal code. As I reported for The Intercept, sex between an arresting officer and a detainee in custody is not necessarily rape under law. The law recognizes that no consensual sex can take place between prison guards and their inmates, or parole officers and parolees, but fail to cover police with detainees yet to be placed in cells.
That’s the legislative gap Treyger, along with colleagues on both the city council and in the New York state house, are working to fill. He is drafting legislation that would make sexual consent for arresting officers a legal impossibility.
“People are shocked that this is not already a law,” said Treyger, who told me that there was a “coalition” of his colleagues both in city council and lawmakers at the state level who, struck by the Chambers case, are eager to see a swift change in legislation. New York City Council cannot change rape laws alone; Treyger’s bill could at most introduce police rape in this context as a misdemeanor. It would take a state-level intervention to make sex in police custody an automatic felony rape.
A legislative shift is no doubt important to preclude even an attempt at a consent defense in future cases like Chambers’s. But cops who rape do not necessarily do so thinking they can later claim consent in court. Could this be two cops scrambling to make a consent claim to avoid the consequences of their behavior? As Acting Brooklyn District Attorney Eric Gonzalez said at the officers’ arraignment on Monday, “To think that these are grown men in a position of power, who are blaming this on an 18-year-old girl, speaks in my opinion to desperation.”
The D.A.’s comment, while a recognition of the problem of coercive police power at play here, expressed a view that the officers were clutching at straws in the face of evidence. A hospital rape kit found Hall’s and Martins’s DNA on Chambers and, according to the teen’s attorney Michael David, two witnesses saw her handcuffed and put into the police car. If claiming consensual sex is a move, as the D.A. suggested, of desperation, then the officers must have been relying more on Chambers’s silence than on a legal loophole around rape in custody. And the power imbalances and historic impunity that produce a presumption of victim silence are as much the problem as the need for a legislative fix.
For full story visit: https://theintercept.com/2017/11/02/nypd-rape-charges-new-york-law/