So, there’s been another horrific case of police abuse that made it to my eyeballs. It actually made it there a couple weeks ago, but I haven’t had a chance to write about it. Content note for cops abusing power, rape, sexual assault, and all the rape apologies, okay?

The basics of the case are available here, and even more details, should you need them and have a strong stomach, are here. For our purposes, what you need to know is that a woman may have had possession of some small amount of Marijuana, and was carrying prescription medication to which she was entitled, but outside of a labeled prescription bottle. Two cops found this after a search that also revealed that one or both of the two men with her also possessed small amounts of marijuana. The cops ordered the men away, handcuffed the woman, the proceeded to place their penises inside the woman while she was handcuffed.

The two moral abominations in this case, NYPD officers RICHARD HALL and EDWARD MARTINS, are of course trying to blame the handcuffed woman for orally and vaginally engulfing their helpless penises, because she took a selfie once, and her clothes looked kinda tight.

What seems amazing about this case, though, isn’t that HALL and MARTINS were allowed to roam around all free-and-stuff for two months after admitting that they handcuffed her and told her that she would be arrested and charged if she didn’t have super-consensual sex with them, but that if she did have consensual sex with them they would take the handcuffs off and she would be free to go despite, they believe, having committed a crime. No, that’s pretty standard in cases where cops rape or sexually assault people. What’s remarkable is that HALL and MARTINS have actually been indicted for first degree rape.

And that is where things get very, very interesting from a legal standpoint. Now, the law of first degree rape in New York states that a person who is “physically helpless” is incapable of granting legally effective consent. There is quite a lot of agreement from decent human beings that when an armed person handcuffs an unarmed person, the unarmed person is pretty much physically helpless at that point, even if the law didn’t go out of its way to make any unwanted touching of a cop into a legally serious assault (and thus constraining any last, desperate hope of physically helping yourself out of your confined state).

But curiously the law actually does go out of its way to state that while incarcerated after conviction and at certain other times, a person is unable to legally consent to sex with a corrections officer. Likewise, while on supervised release one is unable to legally consent to sex with one’s parole/probation officer (I’m not entirely sure if this covers cops who are supervising the conditions of release for someone out on bail, but it might). But the law doesn’t go out of its way to say that persons merely under arrest are unable to legally consent to sex with the armed police officers who arrested them.

So, yes. I think all reasonable people can agree that the physically helpless provision of NY law makes any consent defense irrelevant. However, you have to wonder at the thinking of legislators that bothered to write up this law that removed the consent defense in cases of law enforcement personnel’s sexual contact with someone subject to post-conviction incarceration or supervised release. Did it never occur to them that it is every bit as coercive, every bit as unethical, every bit as much rape when a cop forces a person into sexualized activities incident to an arrest?

I mean, in some cases, for some people, this could be more coercive, right? Sure, guards can label you uncooperative and make sure you serve your full sentences and yes this could add up to a lot of time, but your life was disrupted by a conviction before the rape attempt. For some of the people who are subject to this kind of rape, the fact that no job has been lost yet, no home has been lost yet, and there’s been no sentencing so there’s no way to calculate the worst case outcome of failure to cooperate, could collectively be more frightening to a particular individual in that situation than might be true of at least some people who are already serving a sentence.

So is it possible that it simply didn’t occur to legislators to think about conditions incident to arrest? Frankly, I think that’s unlikely. Despite my ignorance of the legislative history here, I think it is more likely that police unions discouraged the NY legislature from including such provisions.

So in the cases of HALL and MARTINS, we still have the physically helpless clause to use in dismissing their disgusting consent defense. But if the cops had never actually placed this particular victim in handcuffs, they might be allowed to present a consent defense. Frankly, it’s inconceivable that cops haven’t already committed exactly that type of assault many times already. So public notice has already been taken about the different treatment of rapist corrections officers from rapist cops, and there’s some debate about eliminating that oversight (or else I likely wouldn’t have found out and would not have written this post). But there’s some seriously misguided argument out there insisting that since the physically helpless clause seems likely to work properly when HALL and MARTINS go to trial in this case, the physically helpless clause is therefore completely sufficient and that revising current law is both unnecessary and not to be done.

Even if HALL and MARTINS, already admitted rapists in my book, are convicted in a court of law after being reasonably denied a consent defense, there is a clear gap in the law here. If you live in New York, consider giving the NY Assembly or NY Senate a call, e-mail, or web-form-submission and speaking to your representatives about updating this loophole. Don’t let the fact that it’s theoretically possible the law might function well in the current case excuse leaving intact a broad avenue for rapists to use in escaping accountability in other cases.