Earlier this year, Buzzfeed published a piece detailing the story of a teenager who said she was raped by detectives while in police custody. The detectives argued the sex was consensual.
The piece called attention to 34 states (plus DC) in which law enforcement officers could make this claim, which made the rounds on social media along with a map showing where this defense was allowed by law, and was the subject of a Snopes investigation which claimed it was a “mixture” of truth and falsehood.
Those 34 states were Alabama, Arkansas, Colorado, Delaware, Idaho, Illinois, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, New York, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Vermont, Virginia, West Virginia, Wisconsin, and Wyoming.
As of this month, that number is down to 32.
On August 3rd, Illinois Governor Bruce Rauner signed House Bill 5597 into law as Public Act 100-0693, which makes it a class 3 felony for anyone who is “an employee of a law enforcement agency” to engage “in sexual conduct or sexual penetration with a person who is in the custody of a law enforcement agency or employee.”
The law now classifies such situations as “custodial sexual misconduct”, the same offense as corrections officers having sexual contact with inmates.
Further south, Louisiana enacted Senate Bill 105 back in late May. This act created a new section of the Louisiana Revised Statutes which explicitly states that a person is incapable of consent when they are in the custody of law enforcement.
Rape is already illegal in all 50 states. The issue here is that 34 states did not expressly spell out that sexual contact between police officers and those they’ve arrested is rape.
If the officers claimed, or could demonstrate beyond a reasonable doubt, that there was consent, their actions could have been found to be legal. 16 states had enacted laws to prevent this defense, and this year that number has risen to 18.
With most state legislatures adjourned for the year, there is likely to be little more activity on this front until they reconvene. When they do, we’ll see if any more take up this issue.
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