Editorials

EDITORIAL

Sex in police custody: Close the loophole in Mass.

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LOGIC SHOULD DICTATE that someone in the custody of law enforcement cannot consent to a sexual interaction with a police officer. Yet in 35 states, including Massachusetts, laws do not explicitly prohibit sex between a police officer and someone in his or her custody.

Now state Representatives Marjorie Decker and Kay Khan have proposed a bill to close the loophole that allows officers to claim that sexual relations with someone in their custody was consensual.

In a statement, Representative Denise Provost, the bill cosponsor, said what should already be inherent, but somehow is not: The power dynamic between officers and those in their custody “is too unequal to allow for true, uncoerced consent.”

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In 2016, Brian Butler, a now-former Salem police officer, was arrested on indecent assault and battery charges for raping a man in protective custody. Butler was caught having sex with the man on a police station surveillance camera, but claims it was a consensual act. His trial is scheduled to begin in June.

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A Buzzfeed investigation, culled from a Buffalo News database, found that at least 158 officers nationwide had been charged with unlawful sexual conduct with people in their custody since 2006. Claiming consent, at least 26 had been acquitted or had charges dropped.

Born of common sense and decency, this Massachusetts bill should be fast-tracked to Governor Charlie Baker’s desk.

State law forbids police and corrections officers from “engaging in sexual relations with an inmate and indicates that a person shall be deemed incapable of consent in such circumstances.” Yet there remains some “ambiguity in such cases” which can be exploited, Decker and Khan said in a statement.

Such a move would put the Commonwealth on track with other states trying to deter police sexual misconduct.

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In February, the New York State Assembly passed legislation to close its own consent loophole. Last year, two plainclothes New York Police detectives pulled over a car with a young woman and two male friends. The men were allowed to go, but the woman was handcuffed and placed in an unmarked police van with tinted windows. For nearly an hour, she says, the officers took turns raping and sexually assaulting her. Now former detectives, both men have pleaded not guilty to charges including rape and kidnapping. They claim the sexual activity was consensual.

That any officer can claim that a person in their custody consented to sex is absurd enough; that such a loophole exists to give legal cover for their crimes is beyond appalling. It’s inexplicable why such a gap exists. Our state legislators must support eliminating it now.