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It should both surprise and enrage you to learn that under New York state law, it is not illegal for a law enforcement official to have sex with someone in their custody—an action for which they cannot possibly provide consent. The little-known loophole for police is now coming to the attention of local public officials thanks to a disturbing rape case in which two NYPD officers admitted to having sex with a teenage girl in their custody. The teen (and many public officials) call that rape. New York state law, however, does not.

New York City Councilman Mark Treyger, who represents the district where the alleged rape occurred, discovered the gap in the law after the lawyer for the officers claimed the sex was consensual. “Obviously, we’re all very disturbed and outraged about what transpired on the night of September 15 in my district. I was also outraged when I read the commentary from the attorney representing the detectives claiming that the sex was consensual. There’s no consent to that,” he said. “That is rape.”

“My office began to research where in the penal code that this is already a crime, and we were shocked to learn, like many, that there is no official law on the books that says that this can’t happen,” Treyger said.

Article 130.05 of the New York State penal code, which details sex offenses, does take into account potential abuses in the criminal justice system by outlining that those incarcerated or under the community supervision of corrections workers, health care providers, parole officers, and others, are incapable of giving consent. However, the law leaves out law enforcement officers who have arrested or taken someone into custody. When the Intercept asked the NYPD about the law, a spokesperson said, “it is against department policy to have sex on duty.” But, as the Intercept notes, “the law does not preclude consensual sex between an arresting officer and a person in their custody.”

Treyger’s office is currently drafting a bill that will make it a misdemeanor (the harshest penalty applicable by city law) for police officers to engage in sexual activity with someone under custody, and is asking the state legislature to amend the penal code to make it a felony offense. “We need to specifically state that police cannot do this to people in their custody,” he said. “That is rape.”

“I do expect that there will be an action in Albany, but at this time, I’m not sure if there is a bill yet to speak of,” he continued.

Even New York Mayor Bill de Blasio seemed to be caught off guard when a reporter asked him to comment on the rape case. During an unrelated press conference on Tuesday, de Blasio said of the teen consenting to sex while handcuffed,“I don’t see how that’s possible, honestly.” (He stopped short of commenting on the allegations, however, saying, “Any instance like this needs a full investigation so I’m not going to comment on the specific situation under investigation, but as a broad notion, I find it very troubling.”)

After Treyger’s office submits a draft of the bill, it will be assigned to a committee. There will be a public hearing, and then it will enter into
negotiations with the administration. The committee will then vote on the bill and send it to the council. If the measure passes, the mayor will sign it into law.

“I also want to say that I am outraged as well by the attorney for the detectives really trying to demean and denigrate this teenager by trying to project images of her or trying to question her behavior,” Treyger said. “That is completely irrelevant to what transpired that night. And this is what makes it so difficult for victims of sexual assault and rape to come forward and go through this very difficult process. It is disgusting, it is demeaning, it is outrageous, and we have to support victims every step of the way.”