Police Sexual Violence: Police Brutality, #MeToo, and Masculinities

Abstract

A woman alleges that she was raped by a police officer while in police custody. The police officer acknowledges that he had sexual intercourse with the woman, but argues that she consented to the interaction. Despite the obvious power imbalance and troubling context of the sexual activity, in a majority of U.S. states, if the police officer convinces even one member of a jury that their activity was consensual, it is not illegal. Consent is an affirmative defense to allegations of sexual assault— even when the alleged assault occurs while the victim is in the custody of the perpetrator. Allegations of sexual assault committed by police officers while on duty, known as police sexual violence (PSV), are shockingly prevalent and surprisingly underanalyzed. PSV is situated at the intersection of two vital national conversations about police brutality and sexual violence and harassment. This Article is the first to fully address PSV as the product of both issues and to recommend systemic solutions sounding in both debates. The superficial problem presented by PSV is that it is not made clearly illegal by state law and police department regulation. The deeper problem is that PSV is a symptom of broader cultural problems within police departments that can be helpfully parsed through the lens of masculinities theories. PSV is a problem springing both from issues with how police officers relate to the communities they patrol, especially men in those communities, and with how police officers and police culture treat women. These issues are magnified by the famous “blue wall of silence” ensuring loyalty even among police officers who commit misconduct. Any attempt to meaningfully address PSV must take all of these factors into account to work both a legal and a cultural change. This Article offers such solutions, addressing substantive and procedural prohibitions of PSV and broader cultural changes to police departments to combat PSV at its root.