On September 28, attorney Michael David submitted notice of a claim against the the City of New York, the New York Police Department, and two police officers, referred to only as John and Jim Doe. These street clothes-wearing cops, states the claim, “brutally sexually assaulted and raped” his client, 18. Later that day, the identities of the officers were revealed as Brooklyn South narcotics detectives Richard Hall and Edward Martins.
“What was strange,” said David, “was that within only two or three hours of me filing, there was a story leaked to the New York Post saying that the detectives were claiming that the sex they had with my client in custody was consensual. They hadn’t even been named yet.” The attorney told The Intercept that he believes “the police were trying to get ahead of the story”.
At a time when police violence and sexual assault are are getting heavy international attention, the detectives’ apparent defense tactic raises concerns about the approach cops are taking when dealing with the subjects. Just to be clear: a person in police custody cannot give consent to the officer holding them.
Claiming to have been given consent, regardless of whether it’s true or not, goes against a policing culture that refuses to acknowledge its leverage of power over those whom they claim to protect and serve. The Brooklyn District Attorney’s Office is currently looking into the case to find out whether the claim of consent is lawfully credible, but the fact that their defense is that they received consent at all says a lot about how the police themselves view rape — a dynamic that should be resolved immediately.
The claims made against Hall and Martins clearly describe brutal rape. The young woman, who’s adopted the pseudonym “Anna Chambers” on social media, says that on September 15, she and two guy friends were driving in the area of Brighton Beach. The undercover detectives pulled them over for being in a park passed its closing time, and subsequently search their vehicle. The search turned up a bag of drugs lying next to Chambers and some pills one friend had on his person. Only Chambers was handcuffed by police and taken away in an unmarked van.
According to the teen, the police took her to a Chipotle parking lot close by. Then, while she was still handcuffed, they forced her to perform oral sex on them. Before dropping her off on a corner close to the 60th Precinct, she says one of the officers raped her. Chambers’ attorney confirmed that she went to a hospital that night and was given a rape kit. The DNA found on Chambers matched both officers, according to the New York Post’s law enforcement sources.
“I’m so hurt by this situation,” Chambers told The Intercept via Twitter direct message, before referring them to her attorney. David said, “She’s devastated, She doesn’t leave home, she’s extremely depressed, and has been victimized again by these cops saying it was consensual.” He added, “This was a kidnapping, and this was rape.”
On Wednesday, a spokesperson for the NYPD said the two officers involved have been suspended and that the Internal Affairs Bureau is cooperating with the district attorney in the investigation. In an article published Wednesday evening, the New York Post said a grand jury has been summoned to hear evidence against the two officers. The detectives “should have been arrested that night,” said David.
Chambers’ lawyer made sure to stress that his client was a small teenager. “She looks about 15 years old,” the lawyer told the Intercept. Chambers’ social media profiles show her partying and striking poses for the camera — nothing out of the norm for a teenager. In its coverage of the case, the New York Post decided to display pictures of her pouting in a bikini.
The victim’s petite stature and youthful appearance could be important in the case — maybe addressing the cops’ attitudes and assumptions — but the possible condition of consent here should not be based on her size, appearance, or attitude. Also, remaining handcuffed throughout the incident, as she claims, could be critical in a criminal trial. However, even if the cuffs had been removed at some point, the condition of police detention in itself is a form of restraint —
thus the impossibility of consent.
“The reason you have Miranda warnings is precisely because of the coercive effect of being in custody,” civil rights attorney Moira Meltzer-Cohen told The Intercept. “The idea that you can’t give knowing and voluntary consent to answering questions, but you could to sex would be risible if it weren’t so horrifically nauseating.” Yet our current legal statutes fall short in recognizing this inherently coercive effect when it comes to on-duty rape allegations.
Surprisingly, under New York penal law, consensual sex cannot occur between corrections officers and prisoners in their custody, nor between a patient committed to a hospital and those in charge of their supervision, but there is no such law for the police. While “it is against department policy to have sex on duty,” the law does not prevent consensual sex between an arresting officer and someone in their custody.
“It seems wholly appropriate to point out the inadequacy of the law in this case,” Alex Vitale, a professor of sociology at Brooklyn College, told me The Intercept. “It seems clear that it was the intent of the legislature to protect people in police custody, but the wording now says the protection only kicks in when you get to the station house. This should be changed.”
Even if the laws concerning on-duty rape were amended, it’s not unlikely that police could continue to operate with the same levels of impunity that they’re used to. In the Hall and Martins case, Chambers’ attorney said such “brazen” conduct suggested that there would be no consequences for their actions.
In the past, there have been convictions of rape by on-duty officers. In 2015, ex-Oklahoma cop Daniel Holtzclaw was found guilty of several counts of on-duty rape against more than a dozen women and received a sentence of 263 years in prison. It was an uncommon mmoment in a criminal justice system bent on enabling police violence and disbelieving victims.
Another officer guilty of serial rape, Anthony Rollins, was handed an 87-year sentence for his rape convictions. Similar to Chambers’ case, Rollins conceded that he had violated policy by having sex on-duty, but claimed the acts were consensual; in other words, as his attorney put it, he had “sinned” but did not break the law. The judge and jury did not agree — but because of the facts surrounding the case, not because consent was legally and notionally impossible.
It seems no other women have come forward with accusations against Hall and Martins, according to records available to the public. Chambers’ rape accusations must stand alone against the word of two officers who maintain that she consented.
No other women appear to have made accusations against Hall and Martins, according to publicly available records. Chambers’s claim of rape has to stand alone against two officers asserting that she consented. But this case should not be about if a rape happened or not; in an environment with a critical view on policing’s intimidating power, the officers’ admission to sex would be seen as an admission of rape, and Chambers would have to prove nothing at all.