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Pennsylvania Closes the Consent in Custody Loophole

In Pennsylvania, a person who commits a sexual offense against another person may be charged with a range of crimes, from rape to involuntary deviate sexual intercourse to sexual assault to indecent assault. It is also a crime for a person who works for the Department of Corrections or other correctional facility to engage in sexual contact with a person under their supervision or control. This crime, institutional sexual assault, is based on a theory that a person in an institution, such as a jail or prison, cannot consent to sexual contact. Institutional sexual assault can be charged in a number of different situations, such as when a mental health worker engages in sexual activity with a patient in an in-patient facility.

Because this law exists, it may be surprising to learn that — until recently — it did not extend to police officers. In other words, while it is a criminal offense for a prison guard to engage in sexual activities with an inmate, regardless of whether the inmate consented, the same did not apply to police officers who have sex with people under their custody and control.

The result of this loophole in Pennsylvania’s criminal laws was that a law enforcement officer who was charged with sexually assaulting someone in their custody could claim that the victim consented. Even though the power dynamics between a police officer and someone they have in custody are identical to those described in the statute, there was no assumption that a person under the control of a police officer cannot consent to sexual activity.

In November 2019, two Pennsylvania lawmakers introduced legislation to address this loophole. Introduced by State Representative Chris Rabb and State Senator Katie Muth, the “No Consent in Custody” legislation would include police officers in the law against institutional sexual assault. This summer, the legislation passed both the Pennsylvania Senate and House of Representatives. Governor Tom Wolf signed the bill into law on July 23, 2020.

Now that this bill has become law, police officers can longer use consent as defense to sexual assault charges involving a person in their custody. Instead, they will be charged with institutional sexual assault — a charge that reflects the reality of the power imbalance between a law enforcement officer and someone under their control and supervision. Significantly, this law may empower victims of sexual assault to come forward, without worrying that a police officer will claim that they consented to their own assault.

There are still 34 states where the law does not explicitly prohibit police officers from having sexual contact with a person in their custody. A nationwide investigation by the Buffalo News found more than 700 instances where law enforcement officers across the country had engaged in sexual misconduct that was linked to either police work or the use of police resources. High profile cases of police sexual misconduct, such as Daniel Holtzclaw, the Oklahoma City police officer who used his position to target Black women and girls for sexual assault, have only reinforced the need for this type of law.

We applaud the Pennsylvania Legislature and Governor Wolf for taking this important step to protect victims of sexual assault.

If your life has been affected by sexual violence, we are here for you. Contact us anytime at 1-888-832-2272 to speak to a trained crisis counselor. Our hotline is open 24/7, is always free of charge and confidential, and can be anonymous.

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