N.H. Bill Seeks To Classify Sex Between Prisoners, Officers As Assault

Feb 10, 2018

A group of lawmakers from both parties are trying to fix a loophole in New Hampshire’s sexual assault law that allowed a former law enforcement official to evade charges that he raped an inmate who he was driving across the state last year.

A recent Buzzfeed news investigation noted that New Hampshire is one of about three dozen states where "armed law enforcement officers can evade sexual assault charges by claiming that such an encounter — from groping to intercourse — was consensual."

In May 2017, the New Hampshire Supreme Court overturned a rape conviction against a former Belknap County sheriff who allegedly pulled over to have sex with an inmate he was driving from the Belknap County Jail to the New Hampshire State Prison for Women Goffstown. 

The reason? The sheriff wasn’t an employee of the jail or the prison at the time.

The court pointed to the language in the state’s law on aggravated felonious sexual assault. The statute says it’s a crime for someone in a position of authority to coerce someone to have sex with them, including “when the actor has direct supervisory or disciplinary authority over the victim by virtue of the victim being incarcerated in a correctional institution, the secure psychiatric unit, or juvenile detention facility where the actor is employed.”

Those last five words — “where the actor is employed” — were at the heart of the court’s decision not to uphold the former sheriff’s conviction. The court ruled that because the sheriff wasn’t employed by the jail or the prison at the time, he didn't have “direct supervisory or disciplinary authority” over the inmate — and, in turn, the incident didn’t qualify as sexual assault.

In its order on the case, the court invited the legislature “to clarify its intent with regard to the meaning of the phrase at issue.”

Rep. Renny Cushing, of Hampton, was “shocked and outraged” at the outcome. Now, he and a dozen other lawmakers are trying to change the law to clarify that sex between a law enforcement official and someone in their custody is never OK.

“It’s akin to, you know, a slaveholder having sex with a slave and somehow asserting that it was a consensual act. It’s about who holds power in that situation,” Cushing says. “When someone has a prisoner shackled, they offer to unshackle the person for the purposes of having sex, that’s an abuse of power. That’s sexual exploitation. That’s sexual assault. That’s rape.”

His bill would instead make it illegal for anyone with “direct responsibility for maintaining custody of” an inmate or detainee to have sex with that person in “a correctional institution, the secure psychiatric unit, juvenile detention facility or other custodial setting.” It also strikes the language tying the nature of the incident to someone’s place of employment.

The bill sailed through the House on a voice vote this week and now heads to the Senate, where it also has bipartisan support.

The inmate involved in the case against the former sheriff last year has since sued both him and Belknap County, alleging that the official repeatedly used his position of authority to coerce her into having sex with him while he was responsible for transporting her around the state.