If a police officer pulls a person over for running a stop sign, the Fourth Amendment clearly applies. But if he sexually assaults a person in her home, in a noninvestigative setting, it generally does not. A substantive due process test—whether the officer’s conduct “shocks the conscience”—controls instead. This means more constitutional protection for officers and less for victims. This Comment argues that the Fourth Amendment should apply to nearly all sexual misconduct by law enforcement, regardless of whether it arises from a traditional investigative or custodial setting. It also discusses how to apply the Fourth Amendment’s seizure, search, and excessive force doctrines to various forms of law enforcement sexual misconduct: from compelled stripping to rape.
The Fourth Amendment does not require any investigative purpose, and an encounter does not need to involve a criminal suspect to warrant Fourth Amendment protection. We must focus on what an officer does—not where, when, or why he does it. The underlying rationale for not applying the Fourth Amendment to law enforcement sexual misconduct flows from dangerous stereotypes that ignore what actual consent means and what victims experience—two truths highlighted by the courageous voices of #MeToo. The Fourth Amendment offers a better path—one that is more victim centered and doctrinally sound. We should follow the logic and lead of the few courts that show us how. And we should listen to the women who tell us why it matters.Ostrowsky-67-1