By Mark Hallum
A Bayside lawmaker’s bill passed unanimously in the state Assembly that would make any sexual activity between peace officers and those in their custody a felony due the “power dynamic” distorting what it means to consent in that situation.
Assemblyman Edward Braunstein (D-Bayside) introduced the bill in November in support of Councilman Mark Treyger (D-Brooklyn), who drafted the legislation after a September 2017 incident in which two detectives in Brooklyn, who have since resigned, were alleged to have had sex with a teenage girl in their custody who they claimed consented.
“The power dynamic between an individual in custody and a law enforcement officer is such that the person in custody is powerless to consent to sexual activity,” Braunstein said. “This legislation will ensure that individuals in police custody are free from coercive sexual behavior committed by officers exploiting their authority.”
While Treyger’s bill sought to change the penal code to make sexual conduct between a peace officer and a person in their custody a misdemeanor, the highest offense designation allowed to be passed at the city level, Braunstein’s bill would make the offense punishable as a Class E felony.
“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,” Braunstein said in November when the bill was introduced. “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 correction 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.”
The bill was picked up by state Sen. Andrew Lanza (R-Staten Island) in recent weeks, according to a spokesman for Braunstein, and has seen support from leaders at both city and state levels, including state Assembly Speaker Carl Heastie (D-Bronx).
“This legislation helps ensure that New York’s laws regarding consent protect all individuals, including individuals held in police custody, from sexual abuse,” Heastie said. “It is simply wrong that someone exercising custodial government authority, such as a police officer, would violate the trust that should exist between law enforcement and the communities they serve.”
Public Advocate Letitia James got behind the bill in November.
“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,” James said. “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.”
Reach reporter Mark Hallum by e-mail at mhall