Armed rentacop Tyler John Duhon is accused of sexually assaulting a woman after arresting her for possessing a marijuana cigarette at Houston’s downtown Greyhound bus station. (PDF of criminal complaint.)
From the criminal complaint, it appears that Duhon’s defense is that the woman consented to have sex with him.
Usually “she consented” would be a tough defense for the state to overcome.
But a “sexual assault…is without the consent of the other person if [among other things]…the actor compels the other person to submit or participate by the use of physical force or violence….” Restraining and handcuffing a person is, at least arguably, the use of physical force (civil-rights cases discuss handcuffing as reasonably necessary force).
Further, a private security guard can’t legally arrest a person in Texas, except for a felony or an offense against the public peace. Possession of a marijuana cigarette is neither.
So if it is true that Duhon arrested the complainant for possesion of marijuana, then even if the sex was consensual, he and his employer (not to mention Greyhound*) have a serious and expensive problem: unlawful restraint (he restrained her: class-A misdemeanor) or possibly aggravated kidnapping (if he threatened to use deadly force: first-degree felony).
Even if restraint were not the use of force, and even if the complainant had made consenting sounds, the unlawful restraint could vitiate the apparent consent.
I wonder how many Tyler Duhons there are out there, working for Top Gun or otherwise, who think that they can arrest a person for a misdemeanor. More, I wonder how many Harris County prosecutors don’t snap to the fact that a rentacop who has arrested someone for a class-B possession of marijuana has himself committed at least a class-A misdemeanor.
Having sex with an unconsenting stranger is transgressive behavior. Society never countenances it. Restraining an unconsenting stranger is transgressive behavior that society permits only in certain narrowly-delimited circumstances.
The two behaviors are at different points on a single continuum. If we adjust the continuum by tolerating more restraints, sexual assaults become more acceptable…and also more likely: give people the power to arrest, and some of them will use that power to take sexual advantage of those they control.
The law recognizes this, and tries to restore balance by decreasing tolerance for sexual assault in those cases in which restraint is tolerated: in Texas, a peace officer who has consensual sex with a person in custody commits a felony; he can’t claim consent. There is no per se statutory bar, though, to a rentacop like Duhon (or any other non-peace-officer) having sex with someone he has arrested.
What made Duhon’s restraint of the complainant acceptable and put him in a position of control over her? What made his coworker, Kajhri Williams, think it was okay for him to go alone into an office with a handcuffed person? Not the law (which didn’t allow the arrest), but the “war on terror,” which Greyhound used to justify putting Duhon in a position of petty authority, wielding a gun and handcuffs; and the “war on drugs,” which Duhon used to justify the arrest.
The consequences to a woman who was just trying to go about her business are hardly surprising.
*This case should allow some personal-injury lawyer to retire.