It’s accurate to say, as the Brooklyn district attorney’s office noted, that the law didn’t expressly prohibit cops from having sex with cuffed defendants, as it did with corrections officers. But that didn’t make the converse accurate either, that it was acceptable for cops to have sex with Anna Chambers.
The law has since been amended to state what should have been too obvious to require saying as a result of the case, that there can be no consent when a cop has sex with a perp in chains in the back of a van (or anywhere else). When, after some sputtering by Eric Gonzalez’s office, ex-officers Eddie Martins and Richard Hall were indicted for raping Chambers, it appeared that the ship had righted itself. Now, they dropped the rape charge.
In a statement on dropping the charges, the Brooklyn District Attorney’s Office agreed that such sexual conduct should be a crime, but noted “that was not the law at the time of the incident.” The prosecutors added, “Because of this and because of unforeseen and serious credibility issues that arose over the past year and our ethical obligations under the rules of professional conduct, we are precluded from proceeding with the rape charges.”
It’s the second part of that explanation that eludes many non-lawyers, whose passion blinds them to the fact that trials involve witnesses, and witnesses who lack credibility get ripped to shreds on cross-examination for telling too many tales. What these serious credibility issues may be is often hidden in prosecutors’ offices and precinct witness rooms, where statements are taken and signed off, and then significantly undermined by some other statement that contradicts its predecessor.
But while cops and prosecutors know about these statements, they don’t make it into media reports. And even if they did, they tend to be sloughed off and rationalized away. You can do that in an article. You can’t do that in a courtroom, where a witness is held to account for statements under the crucible of cross-examination.
To say that Hall and Martins got away with rape by virtue of a legal loophole would be too generous to the prosecutors. While the ex-cops’ defense was only possible because of a previous flaw in the penal code, the sheer fact that Chambers, a 5-foot-2 teenager, was handcuffed and in the custody of two detectives should have foreclosed the very possibility of claims to uncoerced sex. Instead, the case turned to focus on Chambers’s credibility and the consistency of details in her testimony.
While I have no doubt this was rape, this “legal loophole” contention is the sort of inflammatory distortion that only serves to make people stupider. In the absence of a strict liability offense, the prosecution has to prove its case. It could still do so, “legal loophole” notwithstanding, but for the problems with the credibility of the sole witness to the rape.
The victim was submitted to a level of scrutiny rarely applied to any police officer in any legal proceeding. “Prosecutors generally don’t see insurmountable ethical problems in prosecuting cases, let alone drop cases, when police or prosecution witnesses make prior statements that might appear, or that are, inconsistent with subsequent statements,” New York-based civil rights lawyer Gideon Oliver told The Intercept. “The Brooklyn DA’s Office is no exception; it prosecutes cases based on testimony from witnesses and complainants with ‘serious credibility issues’ every day. The DA made a political decision to do different in Anna Chambers’ case.”
Chambers was subjected (submitted?) to the level of scrutiny normally applied to any ordinary complainant. But Gideon Oliver’s point is important, that cases get tried with witnesses with credibility issues all the time, and yet the prosecutors take them to trial and, perhaps too often, win. But the difference here is that the defendants were cops. Was that the reason the rape counts were dropped?
This was no mere legal technicality. It was a profound moral failing on the part of our justice system.
The passionate voices of moral arbiters see this as obvious. And have taken to the streets to make their position known.
NOW-NYC protesters demanded the U.S. Attorney’s office investigate ex-officers Eddie Martins and Richard Hall’s encounter with Anna Chambers, as she calls herself on social media, after the Brooklyn District Attorney’s office issued a new indictment on felony bribery and official misconduct.
“It’s the kind of crime that unravels the fabric of a society,” saidpresident Sonia Ossorio. “When those in law enforcement, who have taken an oath to protect society, aren’t held accountable, we can’t expect anybody to be held accountable.”
This may well be correct, but it can’t be assumed. Did Chambers say she induced the officers to have sex with her, that they resisted but she persisted? Did she say that it was easy to trick them to shed herself of drug charges, which mattered far more to her than a quickie in a van? Did she care little about the sex part and far more about not getting busted for drugs? And does this matter?
No matter what Chambers said that gave rise to her credibility issues, what these two cops did was inexcusable. There is no justification, not even if Chambers begged them to have sex with her, for their conduct. Ossorio is right, that there is a duty on the part of police to be better than dogs in heat, and that their failure here to uphold their oath undermines the legitimacy of law enforcement.
The Brooklyn District Attorney, however, is looking at whether it can take this case to trial, put this witness on the stand, and have half a chance to get a conviction. That the law didn’t make this a strict liability offense for police officers at the time means they have to make their case. That their witness is shaky is hardly unusual, and rarely deters the prosecution from pursuing a serious case.
Was Chambers’ credibility problems so severe that there was no reasonable belief that they could survive a trial? We don’t know, and likely never will. If not, then punting the rape charges is inexcusable and can’t be explained but for the fact that the perps were cops.
Update: Or maybe we will know. I’m advised by my sources (yeah, I have sources) that the counts were dropped based upon prosecutors’ ethical duty not to put a witness on the stand who they knew would lie under oath. Chambers had previously lied under oath and intended to do so again if called as a witness at trial. In a letter to the court asking to be disqualified from prosecuting the case (which the court denied), this was included:
Under the circumstances, it appears that the DA was caught between their ethical duties not to put a witness on the stand to commit perjury and public perception. By dropping the rape counts, they chose not to violate their ethical duties. Can’t blame them for that.