EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, January 16, 2019

South Carolina State Representative Mandy Powers Norrell Files Detainee Consent Bill

Yesterday, South Carolina State Representative Mandy Powers Norrell filed a bill that would make people in police custody legally incapable of consenting to sexual acts with law enforcement officers. This would apply to any number of people in police custody, including (1) suspects; (2) victims; and (3) witnesses. The origin of all of this is the story of 18 year-old "Anna," who claimed that two Brooklyn police officers took turns raping her when she was taken into police custody after weed was found in a car she was sitting in with two other individuals. The officers claimed that the sexual acts were consensual, which brought to light the fact that 35 states allow police officers to claim that sexual acts with people in their custody were consensual. This is in stark contrast with the correctional facility context, where every state and the federal government says that inmates are legally incapable of consenting to sexual acts with correctional officers.

Representative Norrell's bill says that the same type of law should apply to people who are in police custody. So, how big of a problem is this? Buffalo News maintains a "database of more than 700 law enforcement officers accused of sexual misconduct." Specifically, "[o]f at least 158 law enforcement officers charged since 2006 with sexual assault, sexual battery, or unlawful sexual contact with somebody under their control, at least 26 have been acquitted or had charges dropped based on the consent defense."

But this also understates the scope of the conduct. Many more officers are technically convicted...but of the lesser charge of misconduct in office, often because prosecutors fear that jurors will believe a consent defense, just as they do in many rape and sexual assault cases. That was the case with Dereck Johnson, an officer with the Orangeburg County Sheriff’s Office in South Carolina, who engaged in a sexual act with an alleged domestic violence victim while responding to a 911 call. If you want to see how the consent defense is raised in cases like these, check out this Youtube clip of Dereck Johnson's preliminary hearing:

If you want more insight into the issues surrounding what I'll call "detainee consent," you can check out our special "Consent" episode of the Undisclosed Podcast. And, if you want more insight into Representative Norrell's bill and why I think it should get broad bipartisan support in South Carolina, check out my "Explainer" below the jump.

Detainee Consent Bill Explainer

All states, including South Carolina, have laws stating that inmates are not capable of consenting to sexual acts with police officers or other law enforcement officers. Conversely, most states do not have laws stating that people in police custody, including suspects and victims, are incapable of consenting to sexual acts with police officers or other law enforcement officers.

This “loophole” in the law was brought to light late last year when a young woman in Brooklyn alleged that she was sexually assaulted while in police custody by two detectives, who claimed that the acts were consensual. In the wake of these allegations, four states – New York, Maryland, Kansas, and Louisiana – have passed bills stating that people in police custody are not capable of consenting to sexual acts with police officers or other law enforcement officers. The bills in New York, Maryland, and Louisiana all passed unanimously, and it was reported with regard to the Kansas bill that “[l]awmakers on both sides of the aisle embraced the change, saying it was long overdue.” Indeed, according to Kansas Representative John Carmichael, “Those of us who have been there for a few years thought it was something that had already been taken care of in the law.”

The current loophole in the law creates significant problems. Since 2006, at least 158 law enforcement officers have been charged with sexual assault, sexual battery, or unlawful sexual contact with a person in custody. Of these 158 officers, 26 have been acquitted based upon a consent defense. Many other officers were either never charged or had the charges dropped or reduced. Brooke Lierman, the sponsor of the Maryland bill, said, “I have been shocked at the number of women and organizations serving women who have come forward to tell me they have clients who have experienced this….It’s galling. It’s horrible.”

Cindy Holscher, the sponsor of the Kansas bill, “pointed to multiple affidavits that alleged that detective Roger Golubski had a long history of coercing sex from black women in Kansas City.” In New York, a Buffalo News analysis found that an officer is accused of sexual misconduct every five days. Finally, JP Morrell, the sponsor of the Louisiana bill, commented that “there are cases right now throughout the United States in which officers have been exonerated saying that it is possible for a person while in police custody to consent to having sexual intercourse.”

South Carolina is not immune from these problems. Since 2010, at least ten South Carolina law enforcement officers have resigned or been fired in connection with allegations of sexual misconduct against persons in their custody. These include allegations of sexual misconduct against suspects, victims, and minors. Several of these officers have claimed that the sexual acts were consensual, and there have been difficulties in prosecuting many of these cases. A few of these officers have merely been charged with “misconduct in office” and not rape or sexual assault.

The Supreme Court has described police custody as “inherently coercive,” and a variety of factors explain why a crime suspect or victim would be unable to give consent to a law enforcement officer while in custody. This bill is based on the belief that crime suspects and victims should be given the same protection as inmates. It therefore closes the current loophole in South Carolina law and provides that people in police custody are incapable of consenting to sexual acts with police officers or other law enforcement officers.

-CM

https://lawprofessors.typepad.com/evidenceprof/2019/01/yesterday-south-carolina-state-representative-mandy-powers-norrell-filed-a-bill-that-would-make-people-in-police-custody-leg.html

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Comments

This is nuts - these legislators should revel in going up against any Police Union that opposes this legal change - a perfect storm of news attention that theycan't lose.

Posted by: John Bocum | Jan 18, 2019 12:31:54 PM

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