Former Oklahoma City police officer Daniel Holtzclaw was convicted earlier this month of sexually assaulting over a dozen women while on duty. Holtzclaw’s attacks were despicable. Several of his victims reported that he threatened to arrest them if they did not comply with his sexual demands. In some instances, he made clear that his victims had to provide him with sexual gratification to avoid arrest—an explicit quid pro quo exchange. In other cases, including the case that triggered the investigation into his conduct, Holtzclaw did not explicitly solicit a sexual bribe, but there was still an implicit quid pro quo – if the woman let him get away with the assault he indicated that he wouldn’t make trouble for her.
Holtzclaw is a rapist, but he is not only a rapist – he is also a dirty cop. The fact that he was a police officer is not incidental to his crimes: he was able to sexually assault women and get away with it for so long precisely because of his publicly entrusted power. That abuse of public power for private gain is the definition of corruption. As pointed out in a previous post, the currency of corruption can as easily be sex as money. When a police officer, soldier, immigration official, or judge demands sex in exchange for an official action, that is a type of quid pro quo sexual corruption (sometimes called “sextortion” ). When an official “steals” sex from a woman who is less able to resist the attack or to report it due to his publicly entrusted power, that is another type of sexual corruption. In addition to sexual assault, then, Holtzclaw should have also been charged with bribery and official misconduct.
In Oklahoma, where the Holtzclaw case played out, the definition of bribe includes any “thing of value or advantage” and the statute for official misconduct includes commission of any crime of “moral turpitude.” Both categories are broad enough to encompass sexual corruption. Many other states similarly have statutes on bribery and official misconduct that require only that the official receive a “personal benefit” or any “valuable consideration“; in those cases, prosecutors and courts already can—and more frequently should—use those statutes to cover sexual corruption. There is already some precedent for this. In a few New York cases, for example, police officers have been convicted on corruption charges for using their office to take sexual advantage of members of the public. And in one case an immigration officer was convicted of the felony of accepting a bribe for telling a woman he would deport her if she refused sex, but would arrange a green card for her if she complied. (In states where corruption statutes cover only to monetary benefits, there would need to be a legislative fix.)
But why is it important to prosecute officers like Holtzclaw for sexual corruption, under bribery and official misconduct statutes, when they can already be prosecuted for rape and sexual assault? Two main reasons:
- First, establishing that conduct like Holtzclaw’s is sexual corruption would remove the requirement to demonstrate lack of consent by the victims. Lack of consent is often the most difficult element of sexual assault cases to prove beyond a reasonable doubt, especially in situations where a police officer or other public official uses their publicly entrusted power to extort sex because a victim may be coerced to the degree that she outwardly appears to consent.
- Second, convicting people like Holtzclaw of sexual corruption sends an important message. While a rape conviction obviously sends a message that society will not tolerate this type of behavior, it does not adequately convey that there is something particularly heinous – and terrifying – about the fact that the attacks were carried out by a uniformed police officer bearing a gun the public gave him. In addition to raping and sexually assaulting thirteen individual women, Holtzclaw broke the public trust. He was corrupt. And he should face justice for that, too.
GAB | The Global Anticorruption Blog 
Thank you for this very interesting and excellent post! I am completely convinced by the point that when an official demands sex in exchange for an official action, that amounts to “sextortion” and to me appears to be a straightforward bribery example. I’m curious to discuss further about the implicit quid pro quo cases. The Holtzclaw case seems to have involved both explicit and implicit quid pro quo cases, which I could see as official misconduct, but am having more trouble thinking of as bribery under my understanding of the term. Establishing that Holtzclaw’s conduct amounts to sexual corruption is very compelling to me for the reasons you noted; at the same time, I was wondering about your thoughts on a few points. I agree that in a situation involving a public official, the lack of consent element in sexual assault might appear muddied and be difficult to prove–what are some reasons that establishing a separate sexual corruption category might be preferable to adapting the notion of “consent” to consider implicit quid pro quo situations/context? I could see how incorporating the idea might be less effective than prosecuting the crime via the corruption route. Based on your first point, presumably, the two options would mean that in some cases, an individual could be convicted of sexual corruption, while not being convicted of sexual assault. This doesn’t seem fatally asymmetric to me, but I haven’t thought about it much yet–I’d be curious to hear your thoughts!
Thanks Jeanne! First, I agree that bribery would be limited to the explicit quid pro quo case. Both explicit and implicit quid pro quo would be official misconduct. To make it easier to think of a time where an official should be convicted of sexual corruption but not sexual assault, picture if Holtzclaw acted the same way, but a woman refused him.
With the explicit and implicit, think of sexual harassment (which sexual corruption is actually a form of — we just think of it as limited to education and employment because we have Title VII and Title IX but it actually means sex in the situation of inequality). In some cases, a boss might explicitly say ‘have sex with me and I’ll promote you’ or ‘refuse and you’re fired.’ Others, including the implicit quid pro quo, are a form of a hostile environment.
As to adapting the concept of consent, we have a few situations where we have decided the power imbalances are so extreme (prisoners/guards, psychologists/patients adults/children) that we have deemed consent legally impossible; when coercion is not physical, it is not considered in a consent case outside those areas. The boss from above who demands sex or dismissal is not guilty of rape in most places if the woman submits. If we instead used the prisoner/guard definition for police officers and all members of the public, they would have to take a vow of chastity!
This is a really excellent and compelling post! I understand your argument to be that prosecutors should include lesser corruption-related offenses to rape charges in cases such as this one – out of curiosity, do you conceptualize the corruption-related charges as lesser? If so, your idea seems similar to treating rape as a form of sexual harassment in the campus scenario.
An alternative comes to mind based on your point about the egregiousness of rape committed by a government official: “The fact that he was a police officer is not incidental to his crimes: he was able to sexually assault women and get away with it for so long precisely because of his publicly entrusted power.” Could we have degrees of rape the way we have degrees of murder, with corruption-infused rape occupying a place at the top? I guess I am wondering, should we conceptualize the corruption portion of this crime as a lesser included crime or as an aggravated form of the base rape offense?