On this blog, I have repeatedly called for the anticorruption community to put greater emphasis on fighting sexual corruption around the world. I have argued that a police officer demanding sex in order to perform (or not perform) an official function is a form of bribery; in a few cases, officials have been charged with and convicted of bribery or official misconduct for sexual corruption.
Characterizing this sort of sexual coercion as bribery, however, raises a potential problem: In typical monetary corruption cases, it is possible to prosecute the bribe giver as well as the bribe receiver. Does that mean that the private citizen (almost always a woman) from whom sexual favors are extorted by a public official could be deemed to have “paid” an unlawful bribe? Unfortunately, the idea of charging victims of sexual corruption with bribery is not too far-fetched. In one New York case, two police officers demanded sex from a female motorist if she wanted to avoid arrest (for drugs found in her car); at the officers’ trial, the jury was instructed that the woman was an accomplice as a matter of law to bribe receiving. The appellate court wrote that the test for whether the woman can be considered an accomplice is whether she “theoretically could have been convicted of any crime based on at least some of the same facts that must be proven in order to convict the defendant.” And because the woman in this case acquiesced to the officers’ demands, she met the definition of an accomplice to bribe receiving. (She was not charged, but according to the court she could have been.)
Thus one potential concern with heeding the call to treat so-called “sextortion” as a corruption offense (that is, soliciting a bribe) is that it could lead to greater use of anti-bribery laws to charge the women from whom sex is extorted. (For example, suppose an American businesswoman had sexual relations with a foreign procurement officer as a quid pro quo for receiving a government contract; the businesswoman in this case could conceivably be charged with violating the Foreign Corrupt Practices Act.) It will be crucial to ensure that this never happens. This can be accomplished through a generous interpretation of coercion as a defense to bribery, informed by the existing American jurisprudence on sexual harassment in the employment setting.
In explicating the reasons why a woman who has sex with a public official as part of a quid pro quo exchange should never be charged with bribery, it is helpful to consider separately three cases, from easiest to hardest.
The easiest case for rejecting the idea that the woman providing sex is a culpable bribe-giver would be a situation in which a public official demands sex in exchange for something to which the woman is already entitled (for example, when a police officer demands sex from a woman in exchange for not arresting her, even though the woman has done nothing wrong). In such cases, it is clear that the sexual bribe was extorted through coercion.
Although the question might initially seem harder, the same reasoning ought to apply in cases where an official demands sex in exchange for something that a woman is not otherwise entitled to (for example, when a police officer demands sex in exchange for declining to arrest a woman who has in fact committed a crime). Although here the woman does receive an improper benefit in exchange for providing sex to the official, it is still better to treat these cases also as involving coercion. An analogy to American sexual harassment jurisprudence in the employment context may be useful here: in that context, an employee is never held complicit in her harassment for complying with the sexual demands of a superior; she can still recover damages for sexual harassment, and will not face liability herself, even if she received an “undeserved” benefit, such as a promotion, for acquiescing to the sexual encounter. The rationale is that the employee has so little power compared to the employer that coercion by the latter can be presumed. The same logic should apply to sextortion.
There is an additional reason that all cases involving a sexual quid pro quo should be deemed per se coercive, even if in cases of monetary bribes a court might legitimately inquire into whether the bribe was paid voluntarily. If a public official demands sex in exchange for a benefit, even a benefit that the woman is not entitled to, he has gone so far over the line of acceptability (far further than demanding monetary bribe) that a reasonable woman could easily fear that she does not have a legitimate choice and that violence would result if she attempted to say no. The sex would be implicitly coerced, even if it is not explicitly coerced. Professor Stephen Schulhofer, speaking in the employment sexual harassment context, put it well: “Corrupt sexual offers are also coercive when they arouse fear of more subtle types of retaliation, including exposure to unusually meticulous oversight or the biased oversight of a supervisor’s discretion.”
Moreover, if a police officer demands a monetary bribe, there is usually an obvious moment where someone has to decide whether to comply. In most cases, it takes an affirmative action on the part of the member of the public to pull out money and hand it to the officer. Sex is different. Imagine the following scenario, which has played out far too many times: A police officer discovers drugs in a woman’s car. He begins to search her, and his hands linger, groping her breasts and her groin. She is frozen, horrified and scared. He demands that she removes her underpants so he can complete the search. Before she knows it, he is on top of her, having sex with her. When he is done, he leaves without arresting her. At what point during this encounter does the woman become guilty of the felony of offering a bribe? What actions would she have had to take to avoid liability? A sexual quid pro quo, in contrast to a monetary quid pro quo, may not require the active acquiescence of the victim, and it is therefore justifiable to presume coercion in such cases, even if the victim receives an “undeserved benefit.”
Arguably the hardest cases for the proposition that the woman who has sex with a public official in exchange for a benefit should never be found guilty of bribery are those in which the woman initiates the encounter, offering sex in exchange for a benefit to which she is not entitled. But even here, regardless of who proposed the exchange, if those with public power are using that power to gain access to sexual favors in exchange for public actions, only the public official, and not the woman, should face corruption charges. There are three reasons for this:
- First, legal consent cannot exist in contexts where the power imbalances are extreme – for example between prison guards and inmates, or between psychologists and their patients. Does a prison guard have greater power over a woman than a police officer who holds the power of freedom or imprisonment? A desperate woman who initiates an offer of sex to a police officer in order to stay out of jail and potentially keep custody of her children is not giving true consent. The same is true for sexual encounters with other types of public officials who carry significant power over women’s lives.
- Second, even if the fear or desperation of those who offer or agree to sex is not actually greater compared to those who offer money (and can be charged with bribery), the women who endure the sex with officials have already been “punished” to a far greater degree than those who paid a cash bribe. There may be isolated cases where the woman does not mind having sex with the official, but those will be so rare and so difficult to prove that we should simply presume that the experience is awful for all women.
- Third, a rule that a woman could be charged with bribery if (but only if) she proposed the quid pro quo would have bad incentive effects. Victim reporting rates in sextortion cases are already very low; leaving it up to prosecutors as to whether to charge the victim would therefore dramatically lessen the already paltry incentives to report. After all, a woman who has been the victim of sextortion could reasonably fear that officials, in loyalty to each other and out of revenge for reporting, would charge her with initiating the encounter, even if she had not done so. Such a system would also encourage officials, in an attempt to lessen their own responsibility, to put blame on the victim, which would simultaneously make it less likely that victims come forward and perpetuate the victim-blaming culture that all too often surrounds sexual assault
That said, there is one situation in which a woman could be charged with bribery for proposing a sexual quid pro quo: If the woman initiates an offer of sex in exchange for an undeserved benefit, but the official does not accept it, then the woman is guilty of attempted bribery. In that case, the presumption that the woman was coerced would be untenable, and she could not claim to have been the victim of a sexual assault. Rather, she would be in essentially the same position as someone who offered a cash bribe but was rebuffed.
In sum, when a public official has sex with someone (again, in the vast majority of cases a woman) as part of a quid pro quo involving that official’s authority, the public official is guilty of taking/extorting a bribe, but the woman should never be deemed guilty of paying a bribe–even if the woman received a benefit to which she was not otherwise entitled, and even if the woman was the one who proposed the exchange.