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How the NYPD Gets Away With It

The Anna Chambers case has exposed the entrenched political power wielded by police.

NYPD officers in New York. Jamie Kenny / Flickr

Last September, eighteen-year-old Anna Chambers was driving through South Brooklyn’s Calvert Vaux Park with two of her friends when they were pulled over by an unmarked police van. Two NYPD officers emerged from the van, justifying the traffic stop by simply citing that the park was closed for the evening. But when the officers approached Anna’s car, they demanded to search it for drugs.

The police officers allegedly found a small bag of marijuana in the car and confiscated pills from one of the two male passengers — but they only arrested Anna. The cops handcuffed Anna and reportedly drove her to an empty parking lot, where they raped and sexually violated her in the back of the unmarked van, concealed by its dark tinted windows. After assaulting the young woman, the NYPD officers — who’ve since been identified as Brooklyn South Narcotics detectives Richard Hall and Edward Martins — dropped Anna off on a street corner. Hall and Martins never processed the arrest at the precinct and never drafted a police report about the incident. If left to the judgment of the NYPD’s 60th Precinct in that moment, any evidence of the officers’ crimes would have been erased.

Instead, Anna went to the hospital later that night to seek treatment, where she was administered a standard sexual assault forensic exam, more commonly known as a “rape kit.” When Anna detailed what the two detectives had done to her earlier that evening, the hospital staff followed the standard procedure for responding to sexual assault: they reported it to the New York City Police Department.

The results of Anna’s forensic and medical exams would later reveal Officer Hall’s and Martins’ DNA, providing the strongest evidence to be used in the case against the two officers, who are now facing criminal charges including rape, kidnapping, and twenty counts of sex abuse. In fact, Hall and Martins concede that they engaged in the sexual acts — but claim that the encounter with Anna was entirely consensual, and have therefore pleaded not guilty. Hall and Martins’ legal counsel are able to mount the two officers’ defense largely upon a harrowing fact: In New York state, it’s not illegal for police officers to have sex with the civilians in their custody.

This legal loophole demonstrates a failure of the law to recognize the inherently unequal power dynamic between police officers and civilians. It also demonstrates the protected legal privileges that cops are awarded over most other members of society. There have long been federal and state laws that prohibit employers from engaging in sexual conduct with their employees, for example. Laws addressing sexual harassment in the workplace are predicated on the understanding that a supervisor intrinsically wields power over their employee, the boss over their worker, making it impossible to truly discern between consent and coercion. In fact, similar workplace policies dictate behavior within the NYPD through the Patrol Guide, protecting subordinate officers from potential sexual harassment by their commanding officers. Yet there are zero federal laws — and laws in only fifteen states — that prohibit sex between police officers and their arrestees.

Anna Chambers’s case has brought national attention to this vast legal discrepancy, prompting New York state and city legislators to respond. When the story broke in October, City Council member Mark Treyger, whose district includes the South Brooklyn neighborhood where Anna was assaulted, sponsored a resolution asking the state to change the law. Last month, the New York State Assembly unanimously passed a bill “to establish incapacity to consent when a person is under arrest, in detention or otherwise in actual custody.” Shortly afterward, Governor Cuomo condemned the “egregious loophole” that allows officers to engage in sexual contact with people while detaining them in custody, and he subsequently added an amendment to his proposed state budget echoing the new Assembly bill. An identical New York State Senate version of the bill is currently in committee, and Cuomo’s expressed support makes it highly likely to become law.

Yet while New York and other states might be able legally to forbid sex between officers and their arrestees, there’s little reason to believe such laws will be enforced. The options available to survivors for reporting sexual assault in the first place are few, and all of them ultimately lead back to the NYPD’s doorstep.

Advocates have long sought to limit  the police department’s sway by pushing for accountability via civilian oversight. On February 14th, New York’s Civilian Complaint Review Board (CCRB), a body of thirteen appointed Board Members (including three former NYPD officers designated by the police commissioner) unanimously passed a resolution stating that they will now begin investigating CCRB complaints about police officers committing sexual misconduct. This is a major development, since the CCRB’s policy until now has been to automatically refer all sexual misconduct-related complaints to the NYPD Internal Affairs Bureau, allowing the NYPD to investigate (or disregard) sexual misconduct allegations against the Department’s own officers without any independent oversight.

Fred Davie, Acting Chair of the CCRB, said the Board “has the power and the moral obligation to investigate these cases. Sexual misconduct is always wrong, regardless of the actor, but there is an additional element involved when a person has taken an oath to protect and serve the people of the city of New York, and then does exactly the opposite.”

What Davie’s statement omits is that, as with all criminal allegations against cops, including sexual misconduct, the CCRB still lacks any consequential power. In practice, there is no municipal body or institution that can force prosecutions of officers accused of sexual misconduct, nor can they curtail the NYPD’s power to intervene. Even as the CCRB begins investigating these cases, it still can’t inhibit other agencies from performing their own investigations. While it’s useful that an agency independent from the cops can investigate NYPD misconduct — as the inspector general of the city’s Department of Investigation is tasked with doing, for example — the policy remains  futile as long as the NYPD maintains the authority to investigate their own officers.

The result of New York’s convoluted process for investigating complaints against police officers is that sexual assault cases like Anna Chambers’s are seldom if ever properly scrutinized. Even in cases where the NYPD decides to conduct its own internal investigation, that investigation can potentially impair any criminal investigation of the same case. While the District Attorney’s office could intervene and determine whether or not to bring charges against an officer, it, too, relies heavily on the NYPD’s cooperation and handling of evidence.

The Anna Chambers case demonstrates the core of the problem: police officers wield protected political power over New Yorkers at every stage of the criminal justice process. Only comprehensive, systemic challenges to the NYPD’s power can effectively address police brutality.