Document Type

Article

Publication Date

5-1-2020

Abstract

A woman alleges that she was raped by a police officer while in police custody. The police officer acknowledges that he had sexual intercourse with the woman but argues that she consented to the interaction. Despite the clear power imbalance and troubling context of the sexual activity, in a majority of U.S. states, if the police officer convinces even one member of a jury that their activity was consensual, then the officer cannot be convicted. Consent is a defense to allegations of sexual assault—even when the alleged assault occurs while the victim is in the custody of the perpetrator.

Allegations that police officers have committed sexual assault while on duty are shockingly prevalent and surprisingly underanalyzed. Police sexual violence (PSV) is situated at the intersection of two vital national conversations about police brutality and sexual violence and harassment. This Article addresses PSV as the product of both issues and recommends systemic solutions sounding in both debates.

The immediate problem PSV presents is that it is not made clearly illegal by state law and police department regulation. The deeper problem is that PSV is a symptom of broader cultural problems within police departments that can be helpfully parsed through the lens of masculinities theories. PSV springs from issues both with how police officers relate to the communities they patrol, especially men in those communities, and with how police officers and police culture treat women. The famous “blue wall of silence,” ensuring loyalty even among police officers who commit misconduct, magnifies these issues. Any attempt to meaningfully address PSV must take all of these factors into account to work both a legal and a cultural change. This Article offers such solutions, addressing substantive and procedural prohibitions of PSV and broader cultural changes to police departments to combat PSV at its roots.

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