Loophole allowing Minn. cops to legally have sex with those in custody could change
ST. PAUL—Right now, it's not illegal in Minnesota for police officers to have sex with people in their custody.
That might be about to change.
On Tuesday, May 1, the state House overwhelmingly approved a sweeping public safety bill that includes a provision that would close what some have called a sexual assault loophole, and the Senate has also approved closing the loophole.
There's a national move afoot to address the issue, and there is at least one documented case in Minnesota where a cop was accused of having a sexual relationship — apparently legally — with a woman by leveraging his authority over her. In that case, the officer was suspended but never charged with a crime, and he's still a cop today.
Here's the loophole.
To be clear, it's illegal for anyone, including a peace officer, to forcibly have sex with someone.
Jail guards are already barred from having sex with inmates, psychotherapists are barred from having sex with patients under their care, and other authority figures are similarly prevented from legally having sex with people under their influence.
But not cops. In Minnesota, an officer can argue that the sex was consensual, even if the victim was in handcuffs — a power dynamic many believe is absurdly imbalanced and is tantamount to rape.
Advocates for sexual assault victims note that under numerous scenarios, a suspect for a crime like drug possession or prostitution could be implicitly coerced into "consenting" to sex in exchange for leniency, whether she's physically restrained or not. And if it's the word of a police officer against an alleged drug user or prostitute, juries might be inclined to trust the cop, they say. And, advocates say, people facing other criminal charges are unlikely to report the assault.
Minnesota's hardly alone.
The issue rose on the radars of many around the country last year following the news of an 18-year-old New York woman who accused two officers of raping her while handcuffed in the back of a police van. They were arrested and indicted, but attorneys for the officers have suggested the acts were consensual. That such a defense could be offered for an incident involving a handcuffed suspect and on-duty officers shocked many.
"I thought, 'My God, my daughter is about that age,'" said state Rep. Kelly Fenton, R-Woodbury. "Clearly, when someone is in custody of a police officer, (the officer) is in a position of power over them. I was surprised it wasn't illegal already."
When Fenton learned, via a Buzzfeed analysis showing that 35 states allow cops to have sex with someone in their custody, she decided to try to close the loophole.
Her approach: Make it illegal for peace officers to have sex with anyone in custody or anyone who "does not reasonably feel free to leave the officer's presence." An officer who does so would be guilty of either third- or fourth-degree criminal sexual conduct, both felonies, depending on the level of assault.
A number of states, including New York, Maryland and Massachusetts, have either taken similar steps or are in the process of doing so.
The BCA officer and informant
Minnesota's new law could have come into play in a 2014 federal lawsuit filed by a woman who alleged a senior special agent for the Minnesota Bureau of Criminal Apprehension used her immigration status as leverage to engage in a sexual relationship with her. He had arrested the woman years before in a drug bust and paid her as a confidential informant.
The case against then-Senior Special Agent Adam Castilleja was settled in 2015, costing taxpayers $117,500. While the extent of their sexual contact is unclear, an internal investigation found Castilleja violated BCA policies, including conduct unbecoming a peace officer for engaging in "unwelcome sexual advances/physical contact" and engaging in "any sexual contact or ... lewd behavior."
His defense to internal investigators: It was all consensual. he was never charged with a crime.
Castilleja was suspended for 30 days without pay, reassigned to different duties and stripped of his senior agent title. As of earlier this year, he remained a BCA special agent, although he no longer works with confidential informants. He has not returned requests for comment.
Closing other loopholes
Closing such gaps in Minnesota's sexual assault codes is a common theme at the Capitol this year.
Influenced by a range of factors, including the #MeToo movement, lawmakers have taken steps to stop high school teachers from legally having sex with students and remove an exception for the grabbing of clothed buttocks.