Assemblyman Braunstein & Council Member Treyger Introduce Legislation Prohibiting Law Enforcement Officials from Engaging in Sexual Activity with Individuals in Custody

November 20, 2017

Assemblyman Edward C. Braunstein (D-Bayside) and Council Member Mark Treyger (47th District, Co-Chair of the Council’s Brooklyn Delegation) introduced legislation that would prohibit law enforcement officials from engaging in sexual contact with someone in their custody.

In September, two narcotics detectives allegedly raped a teenager in their custody, and tried to claim it was “consensual.” The detectives, who have since resigned from the force, were indicted on charges including rape, kidnapping, and bribery in early November by the office of Kings County District Attorney Eric Gonzalez. While laws currently exist that explicitly state that inmates are incapable of giving sexual consent to corrections officers and prison workers, and parolees are incapable of giving consent to parole officers, there are no such provisions that apply to those in the custody of police or peace officers.

Council Member Treyger’s legislation would prohibit any sexual contact between police or peace officers and individuals in their custody, and makes any such crime a misdemeanor, the maximum penalty allowed under New York City law. Assemblyman Braunstein’s bill would amend the state penal code to add police and peace officers to the current section of law which already makes any sexual contact between corrections officers and parole officers and those in their custody a Class E felony.

“I would like to thank Council Member Treyger for bringing attention to this important issue and proposing solutions at both the city and state levels,” said Assemblyman Braunstein. “I was shocked to hear that the two NYPD detectives involved in the recent high profile rape case in Brooklyn have offered the defense that the sexual contact was consensual. The power dynamic between someone in custody and the officers themselves is such that the person in custody is powerless to consent to sexual activity. State law already prohibits sexual contact between corrections officers and parole officers and those in their custody. The legislation I am introducing at the state level will amend the penal code to also include state and local police officers.”

“We need strong laws on the books to ensure that law enforcement officers who abuse their power and sexually assault someone in their custody can never again claim consent as a defense,” said Council Member Mark Treyger. “I commend Kings County District Attorney Eric Gonzalez for moving swiftly to bring charges against these detectives, but the victim in this case is a teenager who will now be forced to relive the trauma of this crime in the public eye as this moves to trial. My bill explicitly states that law enforcement officers are prohibited from engaging in sexual activity with anyone in their custody, because there can be no meaningful consent when you are in the custody of a law enforcement officer. All law enforcement officials, including police and peace officers, must be held to the same standard. We have a growing coalition of elected officials and advocates who support this bill because we need to do more to protect the rights of sexual assault victims.”

“There have been a wave of high-profile, powerful men accused of sexually abusing and harassing vulnerable women and men---and officers who sexually harass and abuse vulnerable individuals in their custody are no different,” said Public Advocate Letitia James. “While the vast majority of officers are hardworking and deeply principled, we must have laws in place to hold those few unscrupulous officers accountable. The bills introduced by Assemblyman Braunstein and Council Member Treyger to ensure that sexual activity between officers and those in their custody is prohibited are common-sense measures to ensure that no individual is above the law.”

“Safe Horizon, the nation’s leading victim assistance organization, commends Council Member Mark Treyger and Assemblyman Edward Braunstein for introducing common-sense legislation to explicitly prohibit sexual activity between state and local police and peace officers and persons in their custody, in the same section of the law that already prohibit such activity on the part of corrections and parole officers,” said Michael Polenberg, VP of Government Affairs, Safe Horizon. “Such bills shouldn’t even need to exist to reasonably expect that this should never happen. And yet, lawyers for the two police detectives who have been indicted for first degree rape and other felony offenses claim that a young woman taken into their custody -- and allegedly still in handcuffs -- could somehow consent to sexual activity while sitting in a police van. Safe Horizon offers our full support to the young woman in this case, and we share Assemblyman Braunstein’s and Council Member Treyger’s outrage over this deeply offensive argument for the defense. We urge the full State legislature and City Council to vote these bills into law as soon as possible.”