If you have been detained – in a jail, prison or by any military or law enforcement agency – you may have lost many freedoms. You may not be able to have contact with family and friends. Your movements and schedule may not be in your control. But your body is still your own – and you have the right to protection over it. We’re attorneys representing sexual abuse victims.
According to a report by the National Prison Rape Elimination Commission, sexual misconduct between inmates and detention facility staff is alarmingly common. An officer may require an inmate to engage in sexual acts in exchange for basic necessities – such as toilet paper – or favors – such as contraband. An officer may even demand sexual favors and threaten punishments if the inmate does not comply.
The extreme power imbalance between an officer and inmate raises serious ethical concerns with respect to the issue of consent. Is consent even possible in this scenario?
It is always illegal for prison staff to have sex with inmates. The Prison Rape Elimination Act is a federal law that makes sex between an inmate and detention staff a criminal offense. Because consent between a prisoner and officer cannot exist, any sexual act between these parties is considered rape.
It’s worth noting that the federal law above only protects inmates who have been convicted. It does not offer protection to detainees who have been arrested but not convicted. How the law handles cases of sexual abuse between unconvicted detainees and officers is determined by each state. Some state laws hold that consent between an officer and a detainee can exist. If a detainee claims to have been raped by an officer, the officer can argue a consent defense.
In Illinois, however, a consent defense in this scenario would not hold water. In 2012, Illinois amended its law and made it illegal for any member of law enforcement or the penal system to engage in sexual activity with a detainee.
The House Judiciary Committee is currently considering another federal law – called the Closing the Law Enforcement Consent Loophole Act. If it passes, it would make all sexual contact between law enforcement officials and detainees illegal – regardless of what each state’s law says.
While it is worthwhile for inmates in Illinois to understand that suffering sexual abuse while they are in custody is never okay, historically, inmates are unlikely to come forward and report such abuse – as they may fear retribution for doing so.
If you are a sexual abuse victim, it’s important to realize that you have the right to personal safety – even if the abuse occurred when you were behind bars. You have the right to seek justice and compensation for the mistreatment you endured.