Just yesterday, Snopes cleared up one of the internet’s biggest controversies of the week: It is not true that police can legally rape people in 35 different states. However, it is still too early to breathe a sigh of relief. The truth of the matter is that these 35 states do not have laws that make it illegal for police officers or sheriff deputies to have sex with people in their custody. Although this is almost certainly an oversight rather than a loophole crafted for nefarious purposes, it is a dangerous one, and it reflects a broader issue in the current state of United States laws.

The initial rumor that police can engage detainees in nonconsensual sex without legal consequence originates from, what Snopes refers to as, “poor readings” of a Buzzfeed article posted on Feb. 7. In it, an 18-year-old girl — referred to solely by her internet screen name, Anna Chambers — gives an account of sexual assault at the hands of two New York Police Department narcotics detectives, who have since resigned from the force and are presently being charged with rape. There is no question that intercourse did take place, and DNA evidence confirms these two detectives were the alleged rapists. The trial now hinges upon the question of whether or not the intercourse was consensual and, consequently, much of the investigative focus has been on the alleged victim’s sexual history and social media presentation.

Given the details of this account, it is easy to see how such a rumor came to be. The rapid spreading of horrified social media-responses inevitably leads to some misunderstandings. However, both Chambers’ account and the ensuing controversy only serve to highlight the inadequacy of existing laws.

The U.S. Department of Justice’s page on law enforcement misconduct states, under their section on sexual misconduct, “Law enforcement officers who engage in nonconsensual sexual contact with persons in their custody deprive those persons of liberty without due process of law.”  This seems to be an unnecessary distinction to make, as there are no conditions under which it would be appropriate for a law enforcement officer to engage in even consensual sexual contact with persons in their custody.

If it is the case that a police officer and detainee develop a romantic and or sexual attraction that they mutually decide to pursue, it becomes a personal relationship with the detainee. This would compromise any ensuing investigations or resulting charges due to conflict of interest. If the individual in custody offers sexual favors in exchange for leniency and a police officer agrees, there are issues of bribery and police corruption. Should the police later claim that they had no intentions of carrying through with their side of the bargain, the issue again becomes about consent. 

This is, of course, assuming that a person in custody possesses the capacity to consent in the first place. One of the questions the Rape, Abuse & Incest National Network uses to determine an individual’s capacity to consent is the relationship between the two parties. Their official website asks, “Was the alleged perpetrator in a position of authority, such as a teacher or a correctional officer?” It goes without saying that a police officer — and in fact, any law enforcement official — holds a position of authority over an individual in custody.

According to RAINN, consent should be freely given “without being induced by fraud, coercion, violence, or threat of violence.” The U.S. Department of Justice also states that in cases involving “either force or coercion to overcome the victim’s will,” the force or coercion are sufficient to establish a lack of consent. However, the page goes on to state, “Coercion may exist if a victim is told that an officer will bring false charges or cause the victim to suffer unjust punishment,” failing to acknowledge that such a threat exists whether it is verbalized or not.

There is an inherent power dynamic between a law enforcement official and persons in their custody. Police officers, probation officers and attorneys are all in positions of authority over persons in legal custody, and possess a great deal of influence over such persons’ futures. As such, any propositions from law enforcement to persons in custody are inherently coercive, as there will always be the threat of displeasing an official with significant influence over their permanent criminal record. On the other hand, any propositions from persons in custody toward law enforcement either engenders corruption or, again, is a result of situational duress.

A Nov. 1, 2015 article from the Associated Press details a year-long investigation which found that about 1,000 officers had their licenses revoked for various kinds of sexual misconduct in a six-year period. The article elaborates that this number is “unquestionably an undercount,” as not all states take action against all forms of sexual misconduct, and others do not use a statewide system to decertify officers and, as a result, have no records to offer. The Associated Press also noted that some states reported that they had no officers removed for sexual misconduct despite news stories and court record evidence to the contrary. This number, additionally, does not count any instances of sexual conduct found to be consensual.

It is indeed a relief that there is no region in the United States that legally allows for sexual contact with unconsenting individuals. However, the existing loophole found in 35 states’ laws, including Massachusetts’, which allows for police to have consensual sexual contact with persons in their custody is unacceptable. Law enforcement agencies in each of these states — and it seems even the U.S. Department of Justice — need to re-evaluate their laws, policies and codes of ethics and either improve upon or amend what is written so as to prevent situations such as Chambers’ account from being a legally murky ground. There is no circumstance in which it is appropriate for police, or any law enforcement official to engage in any sort of sexual contact with persons in custody.