NM judge rules inmates cannot consent to sex with COs
Prosecutors raised the question of consent ahead of a retrial for Enock Arvizo, a former CO accused of raping an inmate
By Katy Barnitz
Albuquerque Journal, N.M.
ALBUQUERQUE, N.M. — Inmates cannot legally consent to sex with jail guards, and accused corrections officers cannot use consent as a defense in rape trials, a District Court judge ruled in a recent order.
Prosecutors raised the question of consent ahead of a retrial for Enock Arvizo, a former corrections officer accused of raping a handcuffed and shackled inmate in a courthouse elevator.
Second Judicial District Judge Briana Zamora ruled June 29 that jurors in Arvizo’s retrial will not be asked to consider whether the alleged encounter was consensual.
Zamora quoted the state Supreme Court, which wrote in a civil case that the power disparity between guards and inmates not only facilitates sexual assault but makes meaningful voluntary consent an “unrealistic inquiry.”
“As a matter of law, an inmate victim of sexual assault by a corrections officer cannot give consent,” Zamora wrote.
A jury in May acquitted Arvizo of one of two counts of criminal sexual penetration but could not reach an agreement on the second count. Arvizo’s retrial on the remaining count was reset for mid-September to allow the court ample time to address the consent question.
He also is facing additional rape charges involving a second inmate and assault charges involving a third.
At issue in Arvizo’s case is one particular instruction to be read to jurors before deliberation. It requires the jury to find, based on trial testimony, that the alleged encounter happened “without consent and with the intent to arouse or gratify sexual desire.”
The same instruction specifies that the penetration must not have been part of regular custodial care; for example, a body cavity search.
In the second trial, the words “without consent” will be eliminated from that instruction, Zamora ordered. That means jurors won’t have the choice to decide whether the sex was consensual.
Arvizo’s attorney, Stephen Lane, had argued that only two sets of victims are, by law, statutorily incapable of giving consent – children and patients victimized by a psychotherapist.
Lane did not respond to a request for comment.
Zamora wrote that state law criminalizes sex acts perpetrated on people without their consent, or in the case of children and other vulnerable victims who can’t consent. While the “plain language” of the statute doesn’t list inmates as vulnerable victims, she wrote, the state Supreme Court has recognized that they are.
She referred to a state Supreme Court case in which justices said the control a guard exerts over an inmate “extends into virtually every facet of the inmate’s life.”
A spokesman for the Attorney General’s Office, which is prosecuting the case, said he could not comment.
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