Sexual Misconduct by Public Safety Officers is a Job for Us, Not the Courts
By Lou Reiter

Includes Sample Policy at bottom of article

Those of us in the public safety profession, whether it’s law enforcement or fire, have to accept the fact that members of our profession are abusing their power and oaths of office when they engage in acts of sexual impropriety. The courts appear to be reluctant to hold supervisors and agencies accountable for these acts of misconduct and official abuse of power. And, unfortunately, many police and fire supervisors aren’t stepping forward and doing the right thing either.

You have probably heard others say it’s just boys being boys. Or, maybe, it was consensual. She was flirtatious or trying to get out of a ticket. She was just another groupie. And you may feel safe with the thought that anything that occurred happened after the officer was off-duty. Others may say that if she isn’t willing to cooperate with us there is nothing we should do. Some may still have the incorrect belief that it’s all about credibility and we should give the officer greater weight than the accuser. These are archaic thoughts and will get you and your agency into a heap of trouble.

Police and fire sexual misconduct is occurring throughout the country. Eugene, OR. just settled a lawsuit involving numerous women who alleged they had been abused by officers. Pennsylvania State Police are being scrutinized for troopers working up dates during traffic stops. Two officers in separate departments in Portland, OR, have pled guilty to various criminal charges for ordering females to expose their undergarments under the guise of looking for a suspect with a tattoo. In Louisiana, a deputy was allowing traffic violators to go if they would promise to pose nude for him at a later time and had them expose their breasts so he could photograph them as leverage for their follow through. A State Trooper in the Nashville area was photographing couples engaged in sexual acts in vehicles and had thousands of photographs in his file. Several fire departments, including New York, have been rocked by scandals that firefighters engaged in sex in the station houses.

The victims of these abuses of authority often are vulnerable women - street prostitutes, drug addicts, juvenile runaways, drunk drivers, victims of domestic violence, and traffic violators. In nearly all of the reported cases the officers and firefighters are male. In most cases, particularly with police officers, they are on duty either when the sexual impropriety occurs or when the initial contact is made. They are using their official positions to exercise their authority to demand, entice, coerce, and force themselves upon these victims. It is not always for what most people would term sexual gratification. Sometimes it’s just domination and control and holding these women hostage in an official stop for a long period of time.

Police officers are going to jail for these offenses and for significant periods of time in both state and Federal prisons. But criminal prosecution is difficult. Prosecutors are reluctant to bring these cases to trial considering that most of the victims will be perceived to have credibility issues. Often the officer is a family man, has a stellar professional reputation, and is an active member of his church and local community.

In the civil arena, the courts have been reluctant to hold supervisors and agencies accountable for these acts of misconduct. The courts seem to want direct knowledge on the part of the supervisor and would set the threshold for liability as “deliberate indifference.”  ⁱ In other cases courts have accepted minimal agency response by supervisors as being sufficient to avoid any liability. ⁱⁱ If an agency does something, it seems to satisfy the courts.

It appears that courts require very specific knowledge by supervisors to hold them liable in these sexual misconduct cases. In a Texas case ⁱⁱⁱ the Plaintiff alleged an on-duty sexual assault for which the officer was subsequently arrested and terminated. She alleged prior acts of misconduct, but these documented instances were for use of force. The court dismissed her supervisory claim.

In Pennsylvania, ^iv the Court denied motions to dismiss against several State Police supervisors for their personal knowledge of sexual misconduct of a trooper convicted of numerous on-duty acts. The Court noted that the Third Circuit “has enunciated the following test in this context: [A] plaintiff asserting a failure to supervise claim must not only identify a specific supervisory practice that the defendant has failed to employ, he or she must also allege both (1) contemporaneous knowledge of the offending incident or knowledge of a prior pattern of similar incidents, and (2) circumstances under which the supervisor's inaction could be found to have communicated a message of approval…The Third Circuit has held that this standard requires "actual knowledge and acquiescence," which "can be inferred from circumstances other than actual sight…actually knew rather than to what a reasonable official in his or her position should have known." The Court acknowledged that it had to determine that each of the defendants was on notice and their actions amounted to deliberate indifference. Several of the supervisors were kept in this case because they failed to initiate the process for an administrative investigation.

When a police or fire sexual scandal occurs in a community, it has far reaching implications regardless of any criminal or civil outcomes. It often results in the termination of the Chief of Police or Fire Chief. In the small community of Wakill, NY, a department of about 25 employees, sexual improprieties played a significant part in the eventual consent decree imposed by the State Attorney General.

What we don’t know is whether there are common precursors to officers who may be committing these types of misconduct. But, in most of these departments, the misconduct did not come as a surprise to many in the agency. Most officers in a department know the “skirt chasers” or the ones who like to stalk areas where couples like to park. What is often missing is supervisory interest and intervention. Waiting for a complaint to come in isn’t enough and may not occur until something more disastrous happens.

While nearly every department has sufficient written policy to prohibit these forms of sexual impropriety, few have a written policy specifically addressing police sexual misconduct. In a 2003 reported study involving 40 officers in 14 St. Louis area police agencies, the researcher found that none of the involved agencies had such a written policy. This study also found that the incidence of police sexual misconduct “was common,” but that the occurrences of violent types of sexual misconduct such as rapes were minimal.^v The Legal and Liability Risk Management Institute has a policy that it recommends to agencies for whom it provides professional services. ^vi

It is apparent that the cultural change has to begin in the basic academy. Neil Trautman, National Institute of Ethics, from February 1999 to June 2000 surveyed 1016 police recruits in 25 basic academies in 16 states and found that 46 percent indicated they wouldn’t report another officer who was having sex while on duty. We may be discussing this issue in the generic sense, rather than the specifics of jail time and department humiliation and turmoil.

Supervisors need to be alert to officers who may be abusing their authority and search out indicators of the problem. In the tragic homicide of Kara Knott by California Highway Patrolman Greg Peyer in the 1980s, the subsequent investigations disclosed that there were over 40 females who had alerted the CHP to “strange” practices of Officer Peyer in pulling women over, directing them to a darkened area off the freeway, and keeping them there for prolonged periods of time. None of these complaints were reasonably investigated. It was later learned that he had his citations already partially filled out. He was targeting young women, preferably blond, driving compact cars.

A supervisor can audit the citations and stops of officers to determine the ratio of females versus males. For those officers with reputations as a “skirt chaser” the supervisor under the guise of a quality control audit can conduct personal, random call-backs to females stopped by the officer. These same techniques can and should be used when a complaint of sexual misconduct comes into the station, rather than simply stay within the four corners of that one complaint. In some cases it might be warranted to develop a “sting” operation to determine the actions of the suspected, targeted officer. Some departments have orchestrated a recorded telephone contact using the complainant and the accused officer, if the circumstances warranted. It’s also important to know what other officers were aware of and whether they failed to take appropriate action. Cases in departments have discovered that officers were taking sexual oriented photographs of females and, in some cases, themselves and then displaying them in the station to other officers.

An agency can’t simply wait for the outcome of a criminal investigation. Usually these are conducted by a state level unit, another police agency, or the prosecutor’s office. They are zeroing in on the criminal conduct and usually restricting it to the conduct involving only the victim who has come forward. The administrative investigation can move beyond the four corners of the specific complaint and look at possible collateral misconduct by other officers and supervisory failures. The agency can look for misuse of the computerized data systems and unexplained callbacks to female victims of crimes.

Action steps:

1. Every police agency should promulgate a written policy specifically prohibiting all forms of police sexual misconduct,
2. Basic, in-service and supervisory training should use case studies and on-going incidents in other communities to intensify the significance of this police and fire problem and demonstrate the potential for individual and supervisory liability for failing to take appropriate action when becoming aware of sexual impropriety,
3. Every police agency should require regular audit and inspection techniques designed for validation of whether or not sexual misconduct may be occurring, and
4. Administrative investigations regarding allegations of sexual misconduct should be expanded beyond the four corners of the complainant’s allegation and evaluate possible indicators of agency issues, supervisory responses, and collateral misconduct.

CITATIONS:

1. Maslow, et al., v. Evans, et al., 2003 U.S. Dist. LEXIS 20316 and Doe v. City of Hartford, 2004 U.S. Dist. LEXIS 9824
2. Clancy v. McCabe, 441 Mass. 311; 805 N.E. 2d 484; 2004 Mass. LEXIS 147; Oliver v. City of Berkeley, 261 F. Supp. 2d 870; 2003 U.S. Dist. LEXIS 7889; and Beal v. Blanche, 2005 U.S. Dist. LEXIS 2151
3. Lewis v. Pugh, et al., 2007 U.S. Dist. LEXIS 34754
4. Maslow, et al., v. Evans, et al., 2003 U.S. Dist. LEXIS 20316
5. “Police Sexual Misconduct: Officers Perceptions of its Extent and Causality,” Timothy Maher, Criminal Justice Review, Volume 28, Number 2, Autumn 2003, Georgia State University
6. See Appendix I below:

Appendix I - sample policy

I. Purpose: Law enforcement officers are empowered with authority by their government to protect the public from criminal activity. When an officer abuses this authority for sexual purposes, and violates another person, the officer not only commits a crime against the victim, but damages the credibility and trust of the entire law enforcement community with the public. The purpose of this policy is caution all officers that any violation of the public trust involving sexual misconduct will result in severe consequences including prosecution to the fullest extent possible.

II. Policy: It is the policy of this Department to train all of their officers concerning the potential for criminal sexual misconduct within law enforcement, how to recognize it, and the requirements for reporting any violation to the appropriate authorities.

III. Definitions:

1. Criminal Sexual Misconduct: The abuse of authority by a law enforcement officer for sexual purposes that violate the law.
2. Sexual Misconduct: Any sexual activity while on-duty or stemming from official duty. Sexual misconduct includes but is not limited to use of official position and official resources to obtain information for purposes of pursuing sexual conduct.
3. Intimate Part: Genital area, inner thigh, groin, buttocks or breasts of a person.
4. Actor: The person accused of sexual assault
5. Sexual Contact: Any contact for the purpose of sexual gratification of the actor with the intimate parts of a person not married to the actor.

IV. Procedure:

1. Sexual activity of any nature while on duty is prohibited.
2. Sexual Misconduct is prohibited and shall be disciplined up to and including termination.
3. Any contact for the purpose of sexual gratification of the actor with the intimate parts of a person while on duty is prohibited.
4. A police officer shall not engage in sexual contact with another person who is in the custody of law and such officer has supervisory or disciplinary authority over such other person.
5. Training: All sworn officers of this department including supervisors will receive specific training about the elements of sexual misconduct involving law enforcement officers. The training will also include all elements of this policy.
6. Reporting Requirements: Any employee of this Department, who is made aware of any violation of this policy, is required to report the violation to their supervisor. The supervisor will immediately contact the Internal Affairs Section, or the command level personnel having Internal Affairs responsibility who will immediately initiate an investigation in accordance with their established investigative policy. The investigation will involve other investigative elements of the Department as necessary and any forensic evidence will be protected and processed immediately. The accused officer’s supervisor will not attempt to resolve a complaint of this nature with the complainant, and is required to make immediate contact with Internal Affairs or the command level personnel having Internal Affairs responsibility.

V. Discipline:

1. Any officer found to be in violation of the provisions of this policy shall be disciplined up to and including termination and criminal charges where established.
2. Any employee having knowledge of a violation of this policy, who fails to report said violation shall also be disciplined up to and including dismissal, and criminal charges if appropriate.
3. If the violation involves supervisory personnel, the reporting officer will notify the appropriate command level officer and will not be strictly held to his or her chain of command.

New PATC Seminar

Sexual Misconduct:
Involving Law Enforcement and Fire Personnel

Primary Topics Include:

• Protocols For Investigations
• Sexual Harassment
• Sexual Discrimination
• Proactive Liability and Litigation
• Risk Management
• Legal and Administrative Investigation Protocols

Program Highlights:

• Current Issues and State of the Problem
• Profiles of Officer Involved Sexual Misconduct
• Internal Affairs Administrative Investigation
• Conducting Investigations
• Legal Definitions of Sexual Harassment
• Title VII of Civil Rights
• EEOC Guidelines
• Control Measures
• Proactive Risk Management
• Impact on Agency
• Agency Liability
• Risk Assessment
• Minimizing Agency Liability

Currently Scheduled:
October 22-24 2007
Atlanta, Georgia

Complete Details

Registration Information