Earlier this month, Congress passed a bill explicitly prohibiting federal law enforcement officers from having sex with people in their custody. The “consent loophole” as Mic reported, allowed law enforcement officers accused of sexual assault by people in their custody to avoid charges by claiming the interaction was consensual.

The legal loophole became widespread knowledge following a 2018 story of an 18-year-old New York woman accusing two detectives of raping her in a police van. The detectives, who have since resigned, said she consented. 

Ultimately, sexual assault charges were dropped by the prosecution and the officers were sentenced to five years of probation after pleading guilty to bribery and official misconduct.

Buzzfeed News reported that, in 35 states, their were laws that allowed police officers to claim that a person in their custody consented to sex, and “that of at least 158 law enforcement officers charged with sexual assault, sexual battery, or unlawful sexual contact with somebody under their control from 2006 to 2018, at least 26 were acquitted or had charges dropped based on the consent defense.”

Later that year, New York, Maryland, Kansas, New Hampshire, Illinois, and Vermont changed their police sexual misconduct laws to bar officers from claiming consensual sex with a detainee. 

A 2019 study from a class action lawsuit involving incarcerated women who had experienced staff sexual misconduct, found that “Black women represented over half of the incarcerated women who experienced staff-perpetrated rape.” It also found that though there were no statistical differences between Black and white women with regard to the characteristics of their victimization experiences, “Black women were less likely to have their reports investigated by staff and were more likely to have their investigated reports found to be unsubstantiated.”

Closing the Law Enforcement Consent Loophole Act, passed as part of a broader appropriations bill, will apply to more than 100,000 federal agents. 

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