Texas must close loophole that lets police avoid rape conviction by claiming consent
No one exceeds our love and respect for the brave men and women in law enforcement, which is why a recent report casting the profession in a negative light deserves our attention. At issue are cases of police officers accused of sexually assaulting people in custody. Dozens of states, including Texas, have vaguely written laws that may allow police officers to escape charges by claiming that the sex — with someone being detained or under arrest — was consensual.
This month, New York lawmakers moved to close their state’s loophole, with outrage growing out of a case late last year. An 18-year-old said two plainclothes NYPD detectives detained her, handcuffed her and ordered her into an unmarked van. She says they took turns raping her before depositing her on the side of the road — no arrest, no citation, no paperwork noting that the detention ever took place, according to an expose on these loopholes by BuzzFeed News.
The woman had a rape kit done at the hospital, which showed DNA evidence from the two detectives. The two veterans officers have resigned and pleaded not guilty to dozens of charges, including first-degree rape, first-degree criminal sexual act and second-degree kidnapping. Their lawyers are implying that this can’t be considered assault because “there was no non-consensual sexual encounter.”
“This has been the most common defense used by cops acquitted in sexual assault cases,” according to BuzzFeed. It reported that, since 2006, more than two dozen officers nationwide have been acquitted or had charges dropped based on the consent defense.
In Texas, an officer — like any other citizen accused of sexual assault — can use “consent” to defend against allegations under Penal Code 22.011. That law treats sexual assaults as a seconddegree felony with punishment of two to 20 years in jail, or a first-degree felony punishable with five to 99 years.
Texas also has Penal Code 39.04, which deals specifically with “improper sexual activity with person in custody.” There, “consent” is not a potential defense, which is good. However, this offense is only a state jail felony — not a first- or second-degree felony — and jail time is capped at two years unless the victim is a juvenile.
Mike Snipes, first ADA in Dallas County, this law isn’t intended as an easy way out for officers: “It’s just a lesser charge you could use if you didn’t think you could prove sexual assault.”
But here’s the deal: Those trusted with a gun and a badge, those sworn to uphold the law, should be held to an unimpeachable standard. No officer should be able to avoid being convicted of a sex offense by claiming that the encounter was consensual. That should be made explicitly clear under Texas law.
We urge state legislators and law enforcement officials to add their voices to ours in calling for this loophole to be closed in the next legislative session.
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