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Louisiana just banned cops from having sex with anyone in their custody

The law says there’s no such thing as consensual sex between an individual and an arresting officer, because of the power imbalance.

by Tess Owen
May 31 2018, 5:30pm

Louisiana just became the 19th state to make it illegal for cops to have sex with individuals arrested or in custody.

The bill, which sailed through the Legislature and was signed into law earlier this week by Democratic Gov. John Bel Edwards, says there's no such thing as “consensual sex” between an individual and an arresting officer, because of the power imbalance. It’s the latest in a wave of states acting on the issue since a high-profile case in New York brought it to national attention last fall. Prior to the New York case, about 15 states had similar laws on the books.

“A person is deemed incapable of consent to sexual conduct with a police officer when the person is under arrest or otherwise in police custody,” the Louisiana bill states. Meaning if an officer has sex with someone during an arrest in the state, they can be charged with rape or sexual battery.

"We want to make it absolutely abundantly clear," said State Sen. JP Morrell at a hearing in March, that officers accused of raping people in their custody “cannot use (consent) as a defense."

Morrell decided to sponsor the bill after learning of the loophole in Louisiana law that allows officers to use “consent” as a defense in sexual assault cases.

“The best way to remove this as a defense for law enforcement is if you put individuals in custody in the same category as people who are drunk, drugged or otherwise incapacitated,” Morrell said.

He added there was absolutely no pushback from any of the police unions in the state. “Usually when you have a bill, in any state but especially in Louisiana, that impacts [law enforcement’s] ability to do anything, there’s usually some response,” Morrell said. “But there was no opposition here whatsoever.”

The issue of cops having sex on duty drew more national attention after a high-profile sexual assault case in New York City last September. Two NYPD officers allegedly raped an 18-year-old woman in their police van after arresting her on marijuana charges. The rape kit matched the two officers’ DNA, but they both claimed that the sex was consensual. The case is ongoing, and so far the judge has refused to drop charges against either of the officers. Both have since resigned from the NYPD.

BuzzFeed wrote about the case and also spotlighted the loophole in New York state law that explicitly addresses consent in situations where there is a clear power imbalance, like between inmates and prison guards, but doesn’t mention cops and people in custody. They also identified similar loopholes in 34 other states at the time. BuzzFeed also analyzed data collected by Buffalo News and found that 26 of the 158 law enforcement officers charged nationwide with sex crimes since 2006 were acquitted or had charges dropped after claiming the sex was consensual. The Buffalo News data showed an officer is accused of an act of sexual misconduct at least every five days.

The laws passed recently have slightly different parameters: Kansas’ governor signed a similar bill to Louisiana’s into law last month, but it goes further than the Louisiana bill. Under Kansas law, police officers are now forbidden from having sex with someone during a traffic stop, while they’re interrogating someone in custody, or during an interview in a criminal investigation. Maryland and New York, with support from the NYPD, have also recently passed laws that bars cops from having sex with people they take into custody or arrest. Pennsylvania may soon follow suit.