chevron-down Created with Sketch Beta.
January 11, 2021 Feature

Investigating and Prosecuting Sexual Misconduct Committed by Law Enforcement: Federal Criminal Jurisdiction

Fara Gold

A woman who had long since completed her court-ordered probation sat across from two federal prosecutors and an FBI agent, anxious yet relieved that she finally had summoned the courage to report what her probation officer did to her all those years ago. Her probation officer had repeatedly, and with impunity, sexually abused her during the course of her supervision. He was adept at telling her—and telling all of his other victims—that he could get away with it because no one was going to believe the word of a convicted felon over his. It was a veritable “he said/she said,” and she thought he was right. Who would believe that she was telling the truth if she reported him? With that in mind, knowing that he literally had the power to take away her freedom, she silently endured the abuse, confiding only in a family member for solace. It was not until years later when she learned that federal authorities were investigating that probation officer for sexually abusing another probationer that she dared come forward.

Yet, despite all the time that had passed, her perpetrator’s admonitions still rang loudly and true in her mind—so much so that when the woman met with the prosecutors, she had little hope that they would give her account any credence. He was a law enforcement officer and, therefore, in her mind, “important” and imbued with credibility. She, in her mind, simply was not.

It was that disparate power dynamic between perpetrator and victim, endemic to sex crimes, that her probation officer vigorously exploited. Sometimes that power dynamic is based on physical strength or the perpetrator wielding a knife or a gun. But other times, the perpetrator, like this probation officer, weaponizes his authority, coercing victims to submit to sexual abuse and stay quiet in the aftermath, making them fear that no one will believe them, and everyone will blame them.

This is especially true in the law enforcement context, where victims are usually in the custody of their offender, have a history of criminal activity, and whose status in life per se lowers their credibility in the eyes of those that might judge them. It is therefore not surprising that a victim would doubt being believed, when for all intents and purposes, it is their word against that of an officer, who has a badge and a gun, and who has sworn to uphold the Constitution. In short, these victims are uniquely vulnerable to sexual abuse, assuming that no one will believe them and that their perpetrator will get away with it. Whether that assumption is due to their physical appearance, status in life, relationship to the offender, or a combination thereof, it often means that they delay reporting or never report at all. Lack of reporting means that the perpetrator stays in his position of power and remains a danger to the most vulnerable victims, often the very people the perpetrator has sworn to protect.

To be sure, most law enforcement officers serve their communities honorably. However, for those who do not, there is a federal statute that criminalizes sexual misconduct committed by members of law enforcement—at all levels of government—against those they are supposed to protect and serve. That statute, 18 U.S.C. § 242, criminalizes government actors’ willful deprivation of constitutional rights. It may be more common to think of violations of constitutional rights in the context of an arrest made without probable cause, an officer’s use of unreasonable force, or a corrections officer deliberately ignoring the medical needs of a prisoner. However, sexual misconduct by a government actor likewise implicates constitutional rights, specifically, the right to be free from unreasonable searches and seizures, the right to bodily integrity, and the right to privacy.

The Criminal Section of the Civil Rights Division of the US Department of Justice has primary jurisdiction over federal criminal civil rights violations, and more specifically over violations of 18 U.S.C. § 242. Although the Criminal Section prosecutes crimes involving sexual misconduct with increasing regularity, these crimes are still largely underreported and therefore not investigated as robustly at they could be. Some victims choose not to report because of a variety of reasons, and that is their prerogative. However, because victims of law enforcement–committed sex crimes are often in the custody or under the authority of their perpetrators, they often feel like it is useless, if not impossible, to “report the police to the police,” even if they would otherwise do so. Those victims who want to report, but do not know how to go about doing so, could be better served by increased public awareness that these are federal crimes that can be investigated and prosecuted by federal agents and prosecutors.

To that end, although victims of sexual misconduct committed by law enforcement may not formally report, they often disclose to family, friends, clergy, hospital staff, legal aid groups, tribal leaders, national and local civil rights organizations, counselors, or criminal defense and civil rights attorneys. These disclosure or “outcry” witnesses are largely unaware of the reaches of the federal government’s jurisdiction and its ability to hold perpetrators to account and vindicate the rights of their victims. Increasing the awareness on the part of disclosure witnesses, especially by attorneys who represent these victims in other arenas, is the first step in reporting these crimes and better serving marginalized victims. The second step is coordination, on a case-by-case basis, among state and federal law enforcement and prosecutors to investigate, and where the evidence permits, prosecute these crimes. Working together may lead to more effective outcomes for victims.

The Reaches of Federal Jurisdiction

A misdemeanor violation of 18 U.S.C. § 242, with a penalty of not more than a year in prison, requires proof beyond a reasonable doubt that (1) the defendant acted under color of law, (2) the defendant deprived the victim of a right secured or protected by the Constitution or the laws of the United States, and (3) the defendant acted willfully. To establish a felony violation of 18 U.S.C. § 242, the United States must prove at least one additional element: either that the act resulted in bodily injury or included the “use, attempted use, or threatened use of a dangerous weapon, explosives, or fire” (with a penalty of not more than 10 years in prison) or that the acts resulted in death or included “kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill” (with a maximum penalty of life in prison). Generally speaking, the federal government must charge a case within five years of the incident, unless it involves one of the latter enhancements involving death, kidnapping, aggravated sexual abuse, or attempts thereof, in which case there is no statute of limitations. The definitions and applicability of these statutory enhancements are discussed below.

The threshold inquiry to establish a violation of 18 U.S.C. § 242 is who qualifies as a government actor and whether that actor used or abused their government authority to advance their criminal conduct. Screws v. United States, 325 U.S. 91, 111 (1945). The actions of police officers, tribal officers, corrections officers, probation officers, judges, prosecutors, prisoner transport officers, and other public officials may all fall under the ambit of 18 U.S.C. § 242, and they do not necessarily have to be “on duty” to act under color of law. For example, consider a scenario where a police officer returns to the home of a victim of intimate-partner violence after hours under the pretext of checking on that victim’s well-being. Instead, that officer rapes that victim. Although that officer is acting far outside the scope of actual duties, and is not technically “on duty,” that officer is acting under color of law, having used his government authority to create the situation in which the misconduct could occur.

Similarly, those contracted to work in correctional institutions like medical professionals, as well as those who work in government-contracted facilities or serve as privately contracted prisoner transport officers can also act under color of law. West v. Atkins, 487 U.S. 42 (1988). For example, if a local police department contracts with a private transport company to transport an inmate from one jail to another, the transport officers who work for that company act with government-granted authority. Therefore, if during a transport, a privately contracted transport officer pulls over and sexually assaults an inmate, that officer is acting under color of law. It does not matter whether these are federal, state, or local actors. They are all cloaked in government authority and act under color of law.

The next question is whether a government actor’s conduct constitutes a constitutional violation under 18 U.S.C. § 242. Such conduct can include unwanted sexual contact ranging from groping to penetration, whether procured through coercion, threats, force, or threats of force. There are also instances where gratuitous strip searches, taking of nude photographs, staring, leering, and ogling may be prosecutable. See Florence v. Bd. of Chosen Freeholders of Cty. of Burlington, 566 U.S. 318 (2012); Everson v. Mich. Dep’t of Corr., 391 F.3d 737, 757 (6th Cir. 2004); Lee v. Downs, 641 F.2d 1117, 1119 (4th Cir. 1981).

In order to prosecute government actors for depriving an individual of a constitutional right, the sexual conduct must be nonconsensual and willful. It may seem counterintuitive that a person in custody even has the ability to consent to sexual contact with the individual who has authority over them. Nonetheless, unlike some state statutes as well as 18 U.S.C. § 2244, which per se makes it a federal crime for a federal prison employee to engage in a sexual act with an inmate, 18 U.S.C § 242 is not a strict liability statute. That means that a truly consensual sex act—even with a significant power disparity—does not violate 18 U.S.C. § 242.

The key inquiry to determine lack of consent is whether a victim made a voluntary decision as to what they wanted to do with their body. It will often be, for example, that because of the officer’s size, the remote location where the encounter occurred, the fact that the officer threatened to falsely charge the victim, or a host of other factors that will only come out through a detailed interview that the victim felt that she had no choice but to submit to the officer’s advances. Submission or giving in is not consent. As the US Supreme Court held in Florida v. Bostick, 501 U.S. 429, 438 (1991), “[c]onsent that is the product of official intimidation or harassment is not consent at all. Citizens do not forfeit their constitutional rights when they are coerced to comply with a request that they would prefer to refuse.” However, if, for example, an officer lawfully arrests someone and that person chooses, on their own volition, to consensually engage in a sex act in lieu of getting lawfully arrested, that is not a constitutional violation. It may otherwise be a violation of state law, and most likely a violation of department policy. But it is not a deprivation of the right to bodily integrity or bodily privacy where the individual freely chooses to do what they want with their body. In short, the ultimate question is some version of, “Did you feel like you could say ‘no’?” Importantly, however, federal law does not require the victim to actually say the word “no” to the perpetrator, though, as discussed below, a violation of 18 U.S.C. § 242 requires proof of willfulness. To do so, the United States must show that the defendant knew that the victim did not consent. Saying “no” is powerful evidence that defendant knew the victim did not consent.

More specifically, acting “willfully” means that the government actor must have acted with the specific intent “to deprive a person of a right which has been made specific either by the express terms of the Constitution or the laws of the United States or by decision interpreting them.” Screws, 325 U.S. at 104. The government actor need not specifically intend the resulting constitutional deprivation nor have any real familiarity with the Constitution. It is enough for the government actor to intend to commit the act, that the act resulted in a constitutional deprivation, and that the government actor knew that what he was doing was wrong. Willfulness can also be inferred from an act that violates a clearly established constitutional right, such as sexual misconduct under color of law. In short, if the government actor engaged in nonconsensual sexual contact with the victim, they will be hard pressed to argue that they did not know that such conduct was wrong and against the law.

Moreover, the same types of evidence illustrating consciousness of guilt that are often present in typical stranger or acquaintance sexual misconduct cases are often present in the law enforcement context and serve to further establish willfulness. To that end, it is all too common, as in the example given above with the probation officer, that a defendant repeatedly reminds a victim that they will not be believed because of their criminal history or status as a felon. Likewise, a defendant may warn a victim to keep the misconduct a secret under threat of facing repercussions, or they may commit misconduct in secluded places or out of surveillance camera view to avoid detection. In the same vein, they may falsify reports and lie to investigative authorities, all in an effort to cover up their actions, knowing that such conduct was wrong and against the law.

When Misdemeanor Conduct Becomes a Felony

As mentioned above, there are various statutory enhancements that, if present, convert what would otherwise be a misdemeanor violation of 18 U.S.C. § 242 into felony conduct. As noted above, the maximum penalty of a violation of 18 U.S.C. § 242 increases to 10 years in prison if the government actor’s conduct results in bodily injury or includes the use or attempted use of a dangerous weapon.

For the purposes of establishing “bodily injury,” the defendant need not have intended to cause the injury, and injury may be minor or temporary, including pure physical pain. See, e.g., United States v. Myers, 972 F.2d 1566, 1572–73 (11th Cir. 1992). Though some sexual assaults do result in pain and injury, the vast majority do not, especially when considering the full panoply of sexual misconduct covered by 18 U.S.C. § 242. This results in disparate sentencing schemes between serious sexual assault cases and relatively minor physical assault cases. For instance, a probation officer who coerces a probationer into having sexual intercourse against her will, absent pain, is subject to a significantly lesser punishment than an officer who unjustifiably punches an arrestee, resulting in a bruise or any sort of pain.

Another avenue for a felony prosecution for instances of sexual misconduct under color of law is to establish that the defendant used or attempted to use a dangerous weapon to advance the crime. The fact that an officer has access to a firearm by virtue of it being on their uniform may, depending on the totality of the evidence, be enough to coerce a victim into submission, and therefore help establish lack of consent. Yet it is not enough unto itself to establish the use of a dangerous weapon as a statutory enhancement. However, in some instances, perpetrators overtly use their gun during the commission of their crimes by threatening to shoot their victims during or after the assault, by brandishing it as a means of intimidation, or by making a show of loading the bullets. In each, it is clear that the perpetrator used or attempted to use a dangerous weapon to advance the assault. However, in other cases, the perpetrators’ threats may be less overt. A law enforcement officer’s weapon can serve to both embolden the officer and coerce a victim, without the officer ever having to point the gun at the victim. Instead, they may reference the gun on their hip, purposely place the gun within reaching distance during the assault, or brag about their sharp-shooting skills, all of which belie the assertion that possession of the firearm was merely inadvertent, and potentially triggers the dangerous weapon enhancement. See United States v. Contreras, 950 F.2d 232 (5th Cir. 1991).

The penalties for violating 18 U.S.C. § 242 increase dramatically—up to life in prison—when the constitutional deprivation results in death or includes kidnapping or aggravated sexual abuse, or attempts thereof. As a preliminary matter, the aggravated sexual abuse enhancement requires that there be more than unwanted touching or groping. Instead, as defined by 18 U.S.C. § 2246, it requires “contact between the penis and the vulva or the penis and the anus … contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus … [or] the penetration, however slight, of the anal or genital opening of another by a hand or finger or by any object. …” Once the conduct required by 18 U.S.C. § 2246 can be established, aggravated sexual abuse can then be proven in primarily one of two ways, i.e., either by using force or by threatening or placing the victim in fear of death, serious bodily injury, or kidnapping. 18 U.S.C. § 2241(a). Section 2241(b) establishes a third manner of proving aggravated sexual abuse—where the defendant substantially impairs the victim or renders the victim unconscious in order to perform the sexual act.

Notably, there is currently a circuit split about the definition of force and what constitutes a threat in the context of aggravated sexual abuse. For example, the Eighth Circuit Court of Appeals, as set forth in the its Model Jury Instructions, defines force to include “the use of a threat of harm sufficient to coerce or compel submission by the alleged victim” and states that “[f]orce can also be implied from a disparity in size and coercive power between the defendant and the alleged victim.” Instruction 6.18.242 (2017). Similarly, the Tenth Circuit Court of Appeals has held that “force may be inferred by such facts as disparity in size between victim and assailant, or disparity in coercive power.” United States v. Holly, 488 F.3d 1298, 1302 (10th Cir. 2007).

However, more recently, the Seventh and Third Circuits have called into question these definitions, holding that “force” means physical force “sufficient to overcome or restrain or injure.” It also clarified that for the alternate means of establishing aggravated sexual abuse, threatening or placing a victim in fear cannot just be a generalized threat or fear of harm. Rather, it must be one that rises to the level of fear of death, serious bodily injury, or kidnapping. Cates v. United States, 882 F.3d 731, 732–33 (7th Cir. 2018); United States v. Shaw, 891 F.3d 441 (3d Cir. 2018). Nonetheless, even in the circuits taking a narrower view of the meaning of force, the aggravated sexual abuse enhancement may be established where the defendant holds the victim in place even without brutal violence, is physically forceful throughout the misconduct, or otherwise puts the victim in fear of being brutally beaten or killed if they do not comply. Such facts are not uncommon in law enforcement-committed sex crimes.

The kidnapping enhancement may provide an alternate route to charging a felony where the defendant’s conduct neither rises to the level of aggravated sexual abuse, results in bodily injury, nor includes the use of a dangerous weapon, as is often the case where the misconduct in question is unwanted touching or groping. The kidnapping enhancement does not require that the defendant transport the victim across state lines. Rather, it is analogous to false imprisonment where victims are confined or restrained against their will. Even if a defendant lawfully takes a victim into custody or is lawfully transporting that victim from one jail to another, but then later keeps that victim confined or veers off for the purposes of sexually assaulting the victim, the kidnapping enhancement may be applicable.

Notably, the same evidence used to establish the kidnapping enhancement may also establish substantive kidnapping in violation of 18 U.S.C. § 1201. Federal prosecutors have successfully charged both substantive kidnapping and the enhancement where law enforcement officers have isolated, constrained, or confined their victims in secluded locations. The kidnapping enhancement and substantive kidnapping may be particularly applicable where road patrol officers stray from their route and take victims to remote locations in deserted areas at night or out of radio range. Similarly, the enhancement may be used in prosecutions of corrections officers who lure inmates to locked closets, shower rooms, or similar areas where there are no surveillance cameras or other means of being detected, thereby confining the inmates for the purposes of sexually assaulting them.

Advantages of Federal Prosecution of Law Enforcement Sexual Misconduct

Increased awareness of the federal jurisdiction of sex crimes committed by those acting under color of law should ideally lend itself to coordination among law enforcement authorities at all levels. Such coordination can help inform how to best investigate these allegations and, if the evidence permits, help determine in which jurisdiction to bring charges. Depending on the facts of the incident, there may be statutory advantages, as noted above, as well as evidentiary rules and other factors that weigh in favor of federal prosecution, depending on the laws and resources available among each local jurisdiction. To that end, parallel prosecutions that result in global plea agreements may also be appropriate to most effectively vindicate victims’ rights and hold perpetrators accountable.

Federal prosecution can provide redress where there might not be an effective alternative. For instance, while tribal officials are not subject to the laws of the states, they are subject to federal law. The penalties and consequences of violating federal law, especially in the context of sexual misconduct, may offer a better alternative for victims on reservations who may otherwise hesitate to report a tribal officer to the tribal authorities. This is true in much the same way that victims are hesitant, if not altogether scared, to report local law enforcement to local authorities, in large part because perpetrators may use their friendships and connections to local authorities to silence their victims. Additionally, federal prosecution may be the only viable option where the evidence may not precisely establish the county or local jurisdiction in which a crime occurred. Federal districts are geographically larger, encompassing many local jurisdictions, and therefore may result in federal jurisdiction being more readily provable. These sorts of local jurisdictional or venue issues may arise where a transport officer, for example, sexually assaults an inmate at some point during a transport across county or state lines. The victim may not be able to identify in which small locality the assault occurred, but the evidence may establish the larger federal district.

Additionally, as these are victim-centric prosecutions, there are several Federal Rules of Evidence that can bolster victim credibility, as well as several federal statutes other than 18 U.S.C. § 242 that can strengthen federal cases. First, as mentioned above, victims’ disclosures to outcry witnesses are significant because those disclosures can lead to official reporting and ultimately prosecution of the perpetrators. Such disclosures also have evidentiary value in that they corroborate the victims’ tone, demeanor, and behavior after the assault. But more significantly, statements that victims make to outcry witnesses are also substantively admissible under Federal Rule of Evidence 801(d)(1)(B) as non-hearsay if such prior consistent statements are “offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.” More often than not, that is the very defense that the offender will put forth. In other words, the defendant will likely claim that the victim is lying. This is particularly true if the victim has filed a civil suit because the defendant may then assert that the victim is lying for potential financial gain. Likewise, if there are multiple victims, the defendant will likely claim that the victims all conspired to fabricate their accounts, either by “jumping on the bandwagon” or by saying what investigators wanted them to say. Rule 801(d)(1)(B) helps to rebut these defenses. Specifically, the victim’s initial disclosures to outcry witnesses, whether they be, e.g., written jail grievances, letters to their lawyer, or verbal statements to a pastor or a friend, are admissible for the truth of the matter asserted and go directly to proving the crime charged, particularly by illustrating that their disclosure occurred well before the advent of the federal investigation or their civil lawsuit, as the case may be.

Additionally, it is not uncommon for defendants who commit sex crimes to have done so in the past. Federal Rule of Evidence 413 is a rule of inclusion and, with some exceptions, generally permits the admissibility of other acts of sexual assaults for any matter for which it is relevant. That means that other acts of sexual assault can be admitted to establish propensity, show a pattern of behavior, or rebut a defense of consent or fabrication, among others. Where, as stated in the beginning of this article, victims of law enforcement sex crimes will undoubtedly face credibility hurdles because of their status in life, establishing propensity and a pattern of behavior is especially crucial. Such evidence can bolster victim credibility in a way that no other evidence can. Therefore, finding prior victims by, for example, speaking with each probationer on a probation officer’s caseload or each inmate assigned to a corrections officer’s pod may mean the difference between indictment instead of declination, conviction instead of acquittal, or plea instead of trial.

It is also not uncommon for sex offenders to engage in a pattern of “grooming,” in which they begin testing their victims to see how far they can push their behavior. By exploiting their victims’ weaknesses, be it substance addiction, prior victimization, or their relationship as probation officer to probationer, for example, offenders begin to push the boundaries by asking inappropriate questions or making suggestive comments. This may be admissible under Federal Rule of Evidence 404(b), which permits similar fact evidence to show pattern, motive, and intent, to name a few, but prohibits admissibility to prove propensity to commit the crime charged.

Importantly, where an investigation uncovers prior instances of sexual misconduct that fall within the statute of limitations, each may be charged in a separate count in the same indictment. Even if the conduct in each count only amounts to a misdemeanor, the sentences for each count of conviction can run consecutively. Though, as mentioned, the penalty scheme for 18 U.S.C. § 242 may not adequately account for the continuum of egregious underlying conduct the statute criminalizes, the US Sentencing Guidelines do. Therefore, the advisory guidelines range for any one misdemeanor count will be well above the statutory maximum, permitting consecutive penalties when additional crimes are charged. Likewise, perpetrators may commit various forms of obstruction of justice during the course of committing sexual misconduct or during the investigations thereafter. Making material false statements to federal agents is a felony in violation of 18 U.S.C. § 1001, as is engaging in misleading conduct by lying to either state or federal investigators in violation of 18 U.S.C. § 1512(b)(3), or falsifying police reports or destroying evidence in violation of 18 U.S.C. § 1519.

The range of federal violations, applicable rules of evidence, and the statutory enhancements available provide a strong avenue for federal prosecution, especially where those who commit these crimes might not otherwise be held to account. Direct referral to federal authorities or coordination among authorities at all levels of government may help properly determine in which jurisdiction prosecution is most appropriate. The Criminal Section of the Civil Rights Division welcomes such coordination in order to hold perpetrators accountable and vindicate the constitutional rights of victims in order to achieve the best outcome for those victims and communities alike.

The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.

Fara Gold serves as a Special Litigation Counsel and Senior Sex Crimes Counsel for the Criminal Section of the Civil Rights Division of the US Department of Justice, where she prosecutes bias-motivated crimes and law enforcement misconduct throughout the country, with an emphasis on prosecuting sexual misconduct committed by those acting under color of law. Fara is based in Washington, DC.