Is It Legal To Have Sexual Relations With A Police Officer While In Custody?

Joe: 106.7 WIZN, that is Jimi Hendrix and “Foxy Lady,” heard Black Sabbath before that. I’m Joe Vega taking you through your Wednesday Rocking Ride Home. And I’m joined now by Ben Barry from Martin Harding & Mazzotti. Hello, Ben.

Ben: Hello, Joe.

Joe: So I’m calling you because of this weird conversation I had over the weekend. We were playing golf with some friends and don’t ask me how this came up in conversation, but it did, we were talking about being arrested and having sex with the police officer, and is that legal? And of course, we’re talking about consensual sex here because obviously if it’s not consensual that’s a felony, but we were talking about consensual sex with a police officer while you’re in custody, is that legal?

Ben: No, in New York it’s certainly not legal. I would say that it’s not legal in Vermont as well.

Joe: Even if it’s consensual?

Ben: Even if it’s consensual. It’s a very interesting question because actually more recently the New York State legislature amended Article 130 that deals with specifically intercourse between an officer and someone who is in police custody. That amendment I believe was enacted in 2019, very recently. So it’s actually it’s surprising because most people would assume that that would be clearly something prohibited by law but in fact, in New York State, anyways, it was not.

I think in other states if there is not a statute that’s specifically on point most sexual assault laws deal with the issue of consent and that’s where it is dealt with in Article 130 in New York, so much so that the state legislature says, look, you really can’t be consenting, the presumption is that it is nonconsensual even if you’re consenting because of the difference in the relationship between the arresting officer or somebody in the department of corrections, for example, which was on the books prior to 2019, there really is no consent. The power differential is so significant between the person that would presumably consent and the person who is in power like the correction officer, etc.

So there are… New York State anyways, identifies a number of scenarios where there is no consent whether consent is granted or not. There is no consent between a mental health hospital employee and somebody there and the list goes on. I think it’s important for a lot of the listeners to understand that there are a lot of other relationships that there is an ethical prohibition from the commencement of a relationship after the professional relationship has formed.

The church is a good example between a clergy person and a parishioner, in the legal profession between an attorney and a client, if that relationship did not predate the representation is unethical. And there are a lot of consequences that could arise for that attorney who has engaged in a relationship with one of their clients.

Joe: Wow, that’s some interesting stuff right there. All right. Thank you very much, Ben. Ben Barry from Martin, Harding & Mazzotti.

Ben: Thank you, Joe.

Joe: Remember you can call Ben at any time at 1800law1010 or go online to 1800law1010.com. Mel Allen is taking over, he’s got Pink Floyd and Tom Petty next.