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Cuomo pushes to outlaw police officers having sex with people in custody in wake of Coney rape case

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Gov. Cuomo announced on Feb. 14 that he would finally seek to make it illegal for police officers to have sexual contact with people in custody — a change that Councilman Mark Treyger (D–Coney Island) called for last October after two city cops were accused of raping an 18-year-old woman they had in custody in the neighborhood he represents, only to later claim it was consensual.

Treyger told this paper that he had spoken with Cuomo’s office about the legislation and was glad the legal loophole was a step closer to closing.

“Since we started advocating for this common-sense change to our laws last fall, our coalition has grown, but the message has remained the same: we need to close this loophole and we need to do it now,” Treyger said. “I have been in communication with Gov. Cuomo’s office, and I am pleased that he is putting his support behind the effort to protect victims of sexual assault and the rights of individuals who come in contact with law enforcement officials. The power dynamics between law enforcement officials and an individual in custody mean that no sexual consent can be given free from coercion.”

Cuomo included language in his amended state budget proposal to close the loophole that allows police officers to claim someone in custody gave consent to a sexual encounter — which is already forbidden for probation officers and prison guards.

The loophole currently exists in 35 states, including New York, according to a recent Buzzfeed report.

Treyger began his push for the legislation last October, just before detectives Richard Hall and Eddie Martins were indicted on charges of rape and kidnapping. The cops admitted to the sex, but claimed it was consensual, which the woman denied, her lawyer told this paper.

“You can’t have consent, once you’re arrested, there’s no such thing as consent,” said Michael David, who later told this paper that hospital records prove the woman remained handcuffed the entire time.

Treyger introduced his Council bill and resolution, which called on the State Legislature to amend the Penal Code to make people in police custody incapable of consent, in November.

Last month, Assemblyman Ed Braunstein introduced state legislation based on Treyger’s resolution, and the bill passed the Assembly in early February. State Sen. Andrew Lanza (R–Staten Island) has introduced a bill based on the resolution in his chamber.

And the Civilian Complaint Review Board, an independent city agency charged with investigating police department abuses, unanimously adopted a resolution on Feb. 14 to immediately investigate allegations of sexual misconduct by officers against civilians rather than forwarding them to the Police Department’s Internal Affairs Bureau, where the complaints often lingered or disappeared altogether, according to a report in the New York Times.

Treyger re-introduced his bill and resolution to the new Council session on Feb. 14, and his resolution will next have a hearing at a Feb. 26 joint meeting of the Public Safety and Justice committees in the Council.

Last fall, the woman’s lawyer insisted that Treyger’s bill was irrelevant to her, because consent was not a factor in the least.

“This [bill] does not apply to her situation,” David said, adding that neither he nor his client had been in communication with Treyger or Cuomo. “This was pure rape.”

But more recently, David told this paper that he and the woman were glad that Cuomo was taking up the cause, but that they doubted the bill would make a difference in rape cases because it likely wouldn’t stop rapists from doing what they want.

“It’s definitely a step in the right direction what they’re doing,” David said. “It closes a loophole for potential future victims, but I don’t believe it’s going to stop what happened to her. I’m sure they weren’t thinking when they raped her, ‘we could use consent as a defense.’ ”

Reach reporter Julianne McShane at (718) 260–2523 or by e-mail at jmcshane@cnglocal.com. Follow her on Twitter @juliannemcshane.
Updated 11:48 am, January 16, 2019
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