Scout Katovich, Legal Fellow, NYCLU & Sandra Park, Senior Staff Attorney, ACLU Women's Rights Project
Evidence continues to mount that the New York Police Department may have a sexual assault and harassment problem on its hands. But rather than face up to the fact that some officers abuse their authority and deal with those officers accordingly, the officers’ union is legally trying to make sure that any allegations of sexual assault or harassment are dealt with internally rather than publicly.
For decades, the New York City Civilian Complaint Review Board (CCRB) — the independent New York City agency that investigates civilian complaints of misconduct by NYPD officers — automatically referred police sexual misconduct complaints to the NYPD for internal examination, while it investigated a wide range of other police misconduct, like excessive use of force.
In one of the complaints that the CCRB forwarded to the NYPD, a woman recounted repeated sexual harassment by the same officer. In 2014, when the woman was questioned by an NYPD officer at a crime-scene investigation, the officer gave her his number under the pretense that she may need to reach him if she remembered something that could be relevant to the investigation. But when she encountered him next, he asked her why she never called and made comments about the size of his penis. The third time she encountered him, in 2016, when he entered her holding cell after she had been arrested, he told her “suck my dick.”
In a welcome move, the CCRB clarified in February of this year that it will now investigate such civilian complaints of police sexual misconduct. The CCRB has jurisdiction under New York City law to investigate police “abuse of authority,” and it should go without saying that sexual harassment and violence committed by police are abuses of authority.
Police officers have an enormous amount of power when interacting with or detaining civilians. Their decisions could put someone behind bars for days, months, or years. Charging someone with a crime, even if they are not convicted, can impact a person’s job prospects, housing status, and other critical aspects of their lives.
Anyone who has ever interacted with a police officer understands this lopsided power dynamic. When police officers engage in sexual misconduct, they are taking advantage of this imbalance, whether they know it or not.
Yet, the city’s largest police union, the Patrolmen’s Benevolent Association, has brought a legal challenge to the CCRB’s February sexual misconduct resolution. It seeks to keep such allegations of sexual abuse by NYPD officers in the control of the NYPD and out of the public eye, in part by arguing that police sexual misconduct is not an “abuse of authority.”
In June, The New York Civil Liberties Union and the ACLU’s Women’s Rights Project filed a proposed amicus brief in the case, arguing that the CCRB can lawfully investigate complaints of NYPD sexual misconduct. These investigations, we argue, are essential to safeguarding the rights of women, LGBT people, and others vulnerable to sexual abuse and to promoting police transparency and accountability.
Police sexual misconduct is alarmingly common. A recent survey of over 700 cases of sexual misconduct by law enforcement personnel nationally showed that, on average, a police officer is caught in an act of sexual misconduct at least every five days. Another found that in just one year 618 officers were implicated in sexual misconduct, making it the second most commonly reported form of police misconduct after excessive use of force.
These numbers are also under-inclusive. We know that only one in three women report sexual assault generally, and those numbers are surely lower when victims are told to report the abuse to the very people who perpetrated it.
Because the NYPD does not publicly disclose information about complaints of sexual misconduct that it receives, the scope of this crisis in New York is not fully known. But one study surveying almost 1,000 youth in New York City found that two out of five young women had been sexually harassed by police officers. High-profile incidents of horrific abuse also reveal a troubling problem that must be addressed.
Most recently, an appalling account of two NYPD officers raping an 18-year old in the back of an unmarked van sparked outrage and resulted in the officers facing criminal charges. Disturbingly, they have defended themselves by claiming the encounter was consensual, even though the teen was in police custody. The power dynamics inherent in police-civilian interactions make it impossible for a person to consent in these circumstances.
The International Association of Chiefs of Police recognizes sexual misconduct as a “behavior ... that takes advantage of the officer’s position in law enforcement to misuse authority and power.” The fact that police sexual misconduct is inflicted disproportionately on vulnerable members of society, including women of color, sex workers, drug users, immigrants, people with disabilities, LGBT people, and victims of domestic violence — underscore the abuse of authority inherent in this type of abuse.
The CCRB’s investigation of these complaints is an essential step towards increasing police accountability for sexual abuse and harassment of civilians. By providing an independent reporting mechanism, the CCRB can help combat rampant underreporting of police sexual misconduct. The CCRB will also be able to track and analyze these complaints and make informed recommendations to shape NYPD internal policies, which as of now do not explicitly address sexual harassment of civilians.
What little information is made public about internal NYPD sexual misconduct investigations reveals an agency that tolerates sexual harassment and abuse by NYPD officers, even against their own colleagues, and an internal investigation and discipline system that consistently fails victims of sexual abuse.
The NYPD provides no guidelines regarding the process through which civilian complaints of sexual misconduct are handled. The Brooklyn teenager who was allegedly raped in the police van reported that at least nine NYPD officers came to her hospital room to discourage her from completing a rape kit.
Most recently, the city’s Department of Investigation issued a damning report on the NYPD’s systemic failures to adequately staff and provide resources for the investigation of sex crimes, which “re-traumatizes victims” and “negatively impacts the reporting of sex crimes, thereby adversely affecting public safety.” The fact that the department does a poor job responding to sexual assault complaints committed by civilians underlines how little they can be trusted when it comes to sexual assault complaints regarding NYPD officers.
It’s past time for NYPD sexual misconduct to have its #MeToo moment. Independent investigation by the CCRB will help ensure that these complaints will be dealt with fairly and will help shape a more transparent, accountable, and trustworthy police force.